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Full text of "North Carolina Register v.7 no. 5 (6/1/1992)"

)/ Frs jy7W3S/AV MC " 7 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



CONa 
TITUl 

IITIOW 



EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letters 
Wildlife Resources Commission 

PROPOSED RULES 

Environment, Health, and Natural Resources 
Housing Finance Agency 
Human Resources 

LIST OF RULES CODIFIED 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: June 1, 1992 

Volume 7 • Issue 5 • Pages 401-490 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE POpp 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may is 
temporary rules. Within 24 hours of submission to OAH, 
Codifier of Rules must review the agency's written statemen 
findings of need for the temporary rule pursuant to the provision 
G.S. 150B-21.1. If the Codifier determines that the findings n 
the criteria in G.S. 150B-21 .1, the rule is entered into the NCAC 
the Codifier determines that the findings do not meet the critt 
the rule is returned to the agency. The agency may supplemen 
findings and resubmit the temporary rule for an additional rev 
or the agency may respond that it will remain with its ini 
position. The Codifier, thereafter, will enter the rule into 
NCAC. A temporary rule becomes effective either when 
Codifier of Rules enters the rule in the Code or on the s 
business day after the agency resubmits the rule without chai 
The temporary rule is in effect for the period specified in the ml 
180 days, whichever is less. An agency adopting a temporary 
must begin rule-making procedures on the permanent rule at 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE COI 



The North Carolina Administrative Code (NCAC) 
compilation and index of the administrative rules of 25 s 
agencies and 38 occupational licensing boards. The NC 
comprises approximately 15,000 letter size, single spaced page 
material of which approximately 35% of is changed annu 
Compilation and publication of the NCAC is mandated bv 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state ag 
is assigned a separate title which is further broken dowi 
chapters. Title 21 is designated for occupational licensing board 

The NCAC is available in two formats. 



(I) 



(2) 



Single pages may be obtained at a minimum cos 
two dollars and 50 cents (S2.50) for 10 pages or 
plus fifteen cents (SO. 15) per each additional page. 
The full publication consists of 53 volumes, totalin 
excess of 15,000 pages. It is supplemented mon 
with replacement pages. A one year subscription to 
full publication including supplements can 
purchased for seven hundred and fifty dol 
(S750.00). Individual volumes may also be purch 
with supplement service. Renewal subscriptions 
supplements to the initial publication are available. 
Requests for pages of rules or volumes of the NCAC shoul 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, 
number and date. 1:1 NCR 101-201, April 1, 1986 refei 

Volume 1, Issue 1, pages 101 through 201 of the North Can 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office 
Administrative Hearings, ATTN: Rules Division, PC 
Drawer 27447, Raleigh, North Carolina 27611-7447. (91! 
733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




Office of Administrative Hearings 

P.O. Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733 - 2678 



i. EXECurrvE orders 

Executive Orders 161-165 401 

II. IN ADDITION 

Final Decision Letters 406 

Wildlife Resources 
Commission 408 



III. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Environmental Management....416 
Wildlife Resources 

Commission 449 

Human Resources 

Medical Assistance 415 

Mental Health, Developmental 
Disabilities and Substance 

Abuse Services 409 

Independent Agencies 
Housing Finance Agency 450 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



IV. LIST OF RULES CODIFIED 452 



V. RRC OBJECTIONS 457 



VI. RULES INVALIDATED BY 

JUDICIAL DECISION 461 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



VII. CONTESTED CASE 
DECISIONS 

Index to ALJ Decisions 462 

Text of Selected Decisions 474 

VIII. CUMULATIVE INDEX 489 



NORTH CAROLINA REGISTER 

Publication Schedule 

(May 1992 - December 1993) 



Issue 


Last Day 


Last Dav 


Earliest 


Earliest 


Last Day 


+ 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


x\doption 


Submit 


Effective 






Filing 


Hearing 


by 
Agency 


to 
RRC 


Date 


******************************************************************* 


05/01/92 


04/10/92 


04 17/92 


05/16/92 


05/31/92 


06/20/92 


08/03/92 


05/15/92 


04/24,92 


05/01/92 


05/30/92 


06/14/92 


06/20/92 


08 03/92 


06 01 92 


05/11/92 


05/18/92 


06/16/92 


07/01/92 


07/20/92 


09/01/92 


06/15/92 


05/22,92 


06,01/92 


06/30, 92 


07/15/92 


07/20/92 


09/01/92 


07/01/92 


06/10,92 


06/17/92 


07/16/92 


07/31/92 


08/20/92 


10/01/92 


07/15/92 


06/24,92 


07,01/92 


07/30/92 


08/14/92 


08/20/92 


10/01/92 


08/03/92 


07/13,92 


07 20/92 


08/18 92 


09/02/92 


09/20/92 


11/02/92 


08 '14/92 


07/24/92 


07/31/92 


08/29/92 


09,13/92 


09/20/92 


11/02/92 


09/01/92 


08/11/92 


08/18/92 


09/16/92 


10/01/92 


10/20/92 


12/01/92 


09/15/92 


08/25,92 


09,01/92 


09/30/92 


10/15/92 


10/20/92 


12/01/92 


10/01/92 


09/10,92 


09 17/92 


10/16 92 


10/31/92 


11/20/92 


01/04/93 


10/15/92 


09,24/92 


10,01/92 


10/30/92 


11/14/92 


11/20/92 


01/04/93 


11/02/92 


10/12,92 


10 19,92 


11/17/92 


12/02/92 


12/20/92 


02/01/93 


11/16/92 


10,23,92 


10 30/92 


12/01/92 


12/16/92 


12/20.92 


02/01/93 


12/01/92 


11/06/92 


11 13/92 


12/16/92 


12,31/92 


01/20/93 


03/01/93 


12/15/92 


1 1 24 92 


12/01/92 


12/30 92 


01 14/93 


01/20 93 


03/01/93 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02,03/93 


02/20/93 


04 '01 ,'93 


01/15/93 


12/22,92 


12,31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01,08,93 


01/15/93 


02/16/93 


03,03/93 


03/20,93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03,17/93 


03/20/93 


05/03/93 


03/01/93 


02, 08, 93 


02 15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02,22,93 


03 01 93 


03/30/93 


04, 14/93 


04/20/93 


06/01/93 


04/01/93 


03/11,93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03,24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03 93 


04,12,93 


04/19/93 


05/18,93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23 93 


04 30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05 17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06 01/93 


06/30/93 


07,15/93 


07/20/93 


09/01/93 


07/01/93 


06/10,93 


06 17/93 


07/16/93 


07,31/93 


08/20/93 


10/01/93 


07/15/93 


06, 23/93 


06/30/93 


07/30/93 


08,14/93 


08/20/93 


10/01/93 


08/02/93 


07/12,93 


07/19/93 


08/17/93 


09,01/93 


09/20/93 


1 1/01/93 


08/16/93 


07,26,93 


08 02/93 


08/31 93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08' 18/93 


09/16,93 


10,01/93 


10/20,93 


12/01/93 


09/15/93 


08/24,93 


08 '3 1/93 


09/30/93 


10,15/93 


10/20/93 


12 '01/93 


10/01/93 


09,10 93 


09 17,93 


10/16/93 


10,31,93 


11/20/93 


01 04/94 


10,15/93 


09,24,93 


10 01 93 


10/30 93 


11/14/93 


11/20 93 


01 '04/94 


11/01/93 


10 11 03 


10/18 93 


11/1693 


12,01/93 


12/20 93 


02/01/94 


11/15/93 


10/22,93 


10/29/93 


11/30/93 


12/15/93 


12/20,93 


02/01/94 


12,01/93 


11/05,93 


11 15/93 


12/16/93 


12,31/93 


01/20 94 


03/01/94 


12/15/93 


11/24/93 


12 01 93 


12/30/93 


01/14/94 


01/20,94 


03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows 
the publication schedule above, that the Rules Reviw Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business 
day of the next calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 161 

EXTENSION OF EXECUTIVE ORDERS 12, 13, 

27,29,39,55, 109, AND 110 

WHEREAS, Executive Orders 12, 13, 27, 29, 
39, 55, 109 and 110 established certain boards 
and commissions necessary to promote the gen- 
eral welfare of the citizens of North Carolina; 

WHEREAS, good cause has been demonstrated 
for the extension of these executive orders; 

THEREFORE, pursuant to the authority 
vested in me as Governor by the Constitution 
and laws of North Carolina, IT IS ORDERED: 

Section L EXTENSION OF EXECUTIV E 
ORDERS 

The Board of Trustees of the North Carolina 
Public Employee Deferred Compensation Plan, 
as established by Executive Order Number 39, 
and reissued by Executive Order Number 93, is 
hereby extended, retroactive June 20, 1991, 
without amendment for a period of two years. 

The North Carolina Fund for Children And 
Families Commission, as established by Execu- 
tive Order Number 27, amended by Executive 
Order Number 47, and reissued by Executive 
Order Number 93, is hereby extended, retroactive 
June 20, 1991, without amendment for a period 
of two years. 



The Governor's Highway Safety Commission, 
as established by Executive Order Number 12, 
extended by Executive Order Number 51, and 
reissued by Executive Order Number 93, is 
hereby extended, retroactive June 20, 1991, 
without amendment for a period of two years. 

The North Carolina Sports Development 
Commission, as established by Executive Order 
Number 109, is hereby extended, retroactive 
March 29, 1992, without amendment for a period 
of two years. 

The Governor's Advisory Council on Interna- 
tional Trade, as established by Executive Order 
Number 110, is hereby extended, retroactive 
March 29, 1992, without amendment for a period 
of one year. 

Section 2. RESCISSION OF EXECUTIV E 
ORDER 

The Advisory Committee on Travel and 
Tourism, as established by Executive Order 
Number 8, extended by Executive Order Number 
51, and restructured by Executive Order Number 
112, is hereby rescinded. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh this 21st day of April, 1992. 



The North Carolina State Health Coordinating 
Council, as established by Executive Order 
Number 13, amended and reissued by Executive 
Order Number 51, and amended and reissued by 
Executive Order Number 93, is hereby extended, 
retroactive June 20, 1991, without amendment 
for a period of two years. 

The Governor's Task Force on Racial, Reli- 
gious, and Ethnic Violence and Intimidation, as 
established by Executive Order Number 29, 
amended by Executive Order Number 44, and 
amended and reissued by Executive Order Num- 
ber 93, is hereby extended, retroactive June 20, 
1991, without amendment for a period of two 
years. 

The Martin Luther King Holiday Commission, 
as established by Executive Order Number 55 
and amended and extended by Executive Order 
Number 101, is hereby extended, retroactive 
September 30, 1991, without amendment for a 
period of two years. 



EXECUTIVE ORDER NUMBER 162 

COUNCIL ON HEALTH POLICY 

INFORMATION 

North Carolina invests significant resources in 
the creation and maintenance of major health 
data systems. As a result, we have fundamentally 
sound health data sets of national renown. 
Nevertheless, organizational and other barriers 
prohibit health policy makers from using these 
data sets and systems to the fullest extent possible 
in formulating health policy. 

Health policy in State Government is decen- 
tralized. Several public health and environmental 
programs are located in the Department of En- 
vironment, Health, and Natural Resources. 
Other health related programs such as Medicaid, 
Mental Health, Developmental Disabilities, Sub- 
stance Abuse, and the Office of Rural Health and 
Resource Development are located in the De- 
partment of Human Resources. Still other de- 
partments such as the Department of Insurance 
have programs addressing health concerns. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



401 



EXECUTIVE ORDERS 



These organizational barriers contribute signif- 
icantly to lost opportunities for creative links be- 
tween important health data sets. 

Moreover, while all of the State's health-related 
programs and departments maintain data col- 
lection systems, data gaps still remain. Problems 
stemming from the absence of accessible, reliable, 
timely health data have hindered the use of data 
in the formation of health policy. 

These generic data problems pose formidable 
obstacles to obtaining an adequate understanding 
of the health needs of the residents of North 
Carolina. Moreover, any deficiencies in State 
health statistics affect a broad range of organiza- 
tions that could make use of timely, reliable and 
objective information for health policy and re- 
search. Hence, North Carolina must strive to 
improve the availability and accessibility of sali- 
ent health statistics. Furthermore, every oppor- 
tunity must be taken to foster the general 
understanding and expanded use of health statis- 
tics by policy-makers and other responsible for 
the delivery of health care services in this State. 
THEREFORE: 

WHEREAS, the value of reliable, timely, and 
comprehensive health information is crucial for 
policy-making and program management, and; 

WHEREAS, every effort must be made to re- 
move obstacles which hinder the use of data by 
health policy makers, and; 

WHEREAS, interagency communication and 
cooperation is necessary for agencies responsible 
for the creation of effective health policy since 
no single umbrella agency has authority for all 
health programs, and; 

WHEREAS, North Carolina has been awarded 
funds from the Robert Wood Johnson Founda- 
tion to develop a comprehensive State health 
data plan to enhance the use of health data for 
policy decision-making and program manage- 
ment; 

THEREFORE, by the authority vested in me 
as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Section I. ESTABLISHMENT 

The Council on Health Policy Information 
("the Council") is hereby established. The 
Council shall consist of not less than 21 members 
appointed by the Governor. 



Section 2. MEMBERS OF THE COUNCIL 

The membership of the Council shall include, 
but not be limited to, the following persons or 
their designees: 



(1 

(2 



(3 

(4 

(5 

(6 

(7 



(9 
(10 



(11 

(12 
(13 
(14 
(15 
(16 
(17 



State Health Director, who will serve as 
Chairman; 

Director of the Division of Medical As- 
sistance, Department of Human Re- 
sources; 

Director of the Office of State Planning; 

Commissioner of Insurance; 

State Budget Officer; 

Director of Fiscal Research for the Gen- 
eral Assembly; 

Director of the Office of Rural Health and 
Resources Development, Department of 
Human Resources; 

Director of the Division of Aging, De- 
partment of Human Resources; 

Chairperson of the Commission for 
Health Services; 

Director of the Division of Mental 
Health, Developmental Disabilities, and 
Substance Abuse, Department of Human 
Resources; 

Chairperson of the State Health Coordi- 
nating Council; 

President of the Association of Local 
Health Directors; 

President of the North Carolina Hospital 
Association; 

President of the North Carolina Medical 
Society; 

Director of the Duke University Institute 
for Health Policy; 

President of the North Carolina Minority 
Health Center; and 

President of Citizens for Business and 
Industry. 



The Membership of the Council shall also in- 
clude one member of the North Carolina House, 
one member of the North Carolina Senate, and 
two representatives of private insurance compa- 
nies doing business within North Carolina. 

The following persons or their designees shall 
serve as ex-officio members of the Council: 

(1) Director of the State Center for Health and 
Environmental Statistics; 

(2) Executive Director of the Medical Data- 
base Commission; and 

(3) Director of the Health Policy Unit of the 
Cecil G. Sheps Center for Health Services 
Research, University of North Carolina 
School of Public Health. 



402 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



EXECUTIVE ORDERS 



All members shall serve at the pleasure of the 
Governor. All vacancies shall be filled by the 
Governor. 

Section 3. FUNCTION'S 

A. The Council shall meet monthly, or by call 
of the Chairman. 

B. The Council shall submit to the Governor 
a State Health Data Plan by May 1, 1993, that 
outlines: 

(1) How North Carolina can further enhance 
data-based health policy-making through 
improved health statistics and information 
systems; and 

(2) How best to institutionalize a process for 
collaborative health policy formulation 
and implementation. 

C. To execute its responsibilities the Council 
shall have the power to: 

(1) collect existing program data and request 
additional data from public and private 
sources as needed, 

(2) hold public hearings; and 

(3) set up ad hoc committees as necessary and 
appropriate to fulfill its responsibilities. 

Section 4. ADMINISTRATION 

A. Financial support for the Council shall be 
provided through a grant from the Robert Wood 
Johnson Foundation to be administered by the 
Department of Environment, Health, and Na- 
tural Resources. 

B. Members of the Council shall be reimbursed 
for necessary travel and subsistence expenses as 
authorized under General Statute 138-5 and 
138-6. Funds for such expenses shall be made 
available from funds provided by the grant from 
the Robert Wood Johnson Foundation. 

C. The continuation of this Executive Order, 
or any renewal or extension thereof, is dependent 
upon and subject to the allocation of appropri- 
ation of funds for the purposes set forth herein 
(N.C.G.S. 143-34.2). 

D. Each cabinet department involved shall 
make every reasonable effort to cooperate with 
the Council to implement the provisions of this 
order. 

Section 5. TERM 



This Executive Order shall become effective 
immediately and shall expire, subject to the con- 
dition of Section 4C, in accordance with North 
Carolina law two years from the date hereof. It 
is subject to reissuance at the discretion of the 
Governor. 

Done in Raleigh, North Carolina, this 1st day 
of May, 1992. 

EXECUTIVE ORDER NUMBER 163 

AMENDMENT TO EXECUTIVE ORDER 

NUMBER 151 

By the authority vested in me as Governor by 
the Constitution and laws of North Carolina, IT 
IS ORDERED: 

Executive Order Number 151 is hereby 
amended to add the following members to the 
Governor's Advisory Commission on Military 
Affairs: 

Section I. ESTABLISHMENT 

The Governor's Advisory Commission on Mil- 
itary Affairs is hereby re-established. It shall be 
comprised of thirty-five (35) members. Nineteen 
(19) members are to be appointed by the Gover- 
nor and serve for terms of two (2) years at the 
pleasure of the Governor. In addition to the 
nineteen (19) appointed members the following 
sixteen (16) will be permanent members: 

(1) Lieutenant Governor of North Carolina; 

(2) Chairpersons of the Military Affairs 
Committees of the North Carolina House 
of Representatives and the North 
Carolina Senate; 

(3) Secretaries of the Departments of Admin- 
istration, Transportation, Environment, 
Health, and Natural Resources, Crime 
Control and Public Safety, and Economic 
and Community Development; 

(4) Base Commanders of Fort Bragg, Camp 
Lejeune, Cherry Point and the Elizabeth 
City Coast Guard Air Station; 

(5) Wing Commanders of the 4th Tactical 
Fighter Wing and the 317th Tactical Air- 
lift Wing; 

(6) Executive Director of the North Carolina 
Ports Authority; and 

(7) Adjutant General of the North Carolina 
National Guard. 

The Governor shall designate one of the mem- 
bers as Chairperson. 

This Executive Order shall become effective 
immediately. 



7:5 NORTH CAROLINA REGISTER June I, 1992 



403 



EXECUTIVE ORDERS 



Done in Raleigh, this the 30th day of April, 
1992. 

EXECUTIVE ORDER NUMBER 164 
EXTENDING THE PROVISIONS OF 
EXECUTIVE ORDER NUMBER 114, 
AS SUPPLEMENTED BY EXECUTIVE 
ORDER NUMBER 130, FOR FISCAL 
YEAR 1991-92 



directed by the Office of Budget and Manage- 
ment. 

Section 2. This Order shall become effective 
May 1, 1992, and shall remain in effect until 
rescinded by further Executive Order. 

Done in the Capital City of Raleigh, North 
Carolina, this 1st day of May, 1992. 



Reference is made to Executive Order Number 
114 dated May 8, 1990, and Executive Order 
Number 130 dated January 9, 1991. 

It has been determined from the continuing 
survey of the collection of revenues for the 
1991-92 fiscal year made by the Office of State 
Budget and Management, that unless economies 
are effected in State expenditures as allowed in 
Executive Order Number 1 14 and Executive Or- 
der Number 130, the State will incur a deficit in 
the administration of its General Fund budget. 

THEREFORE, pursuant to authority granted 
to the Governor by Article III, Sec. 5(3) of the 
Constitution and to fulfill the duties required of 
the Governor thereunder: 

1. It is found as a fact that based on General 
Fund Revenue Collections through March, 1992, 
and projections for the collection of these reven- 
ues through June, 1992, actual receipts of Gen- 
eral Fund revenues for the 1991-92 fiscal year will 
not meet those anticipated and budgeted by the 
1991 General Assembly. 

2. From this fact it is determined and con- 
cluded that unless economies in State expendi- 
tures are made as allowed in Executive Order 
Number 114 and Executive Order Number 130, 
the State's General Fund expenditures will ex- 
ceed General Fund receipts for the 1991-92 fiscal 
year. 

3. To insure that a deficit is not incurred in the 
administration of the General Fund budget for 
the 1991-92 fiscal year, the economies in State 
expenditures allowed by Executive Order Num- 
ber 114 and Executive Order Number 130 are 
found to be necessary. 

THEREFORE, IT IS ORDERED: 

Section U Effective May 1, 1992, and until fur- 
ther notice, the economies in State expenditures 
allowed by Executive Order Number 114 and 
Executive Order Number 130 shall be put into 
effect at such times and in such amount and as 



EXECUTIVE ORDER NUMBER 165 

EXTENSION AND RESTRUCTURING OF 

EXECUTIVE ORDER NUMBER 43 

Whereas, there is a need to restructure the 
North Carolina Emergency Response Commis- 
sion in order to foster safety for the citizens of 
North Carolina; 

Therefore, pursuant to the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Executive Order Number 43, as amended by 
Executive Order Numbers 48 and 50, and reis- 
sued pursuant to Executive Order Number 93, is 
hereby extended, retroactive June 20, 1991, for a 
period of two years, and is hereby amended as 
follows: 

Section I. ESTABLISHMENT 

There is hereby established the North Carolina 
Emergency Response Commission (the "Com- 
mission"). The Commission shall consist of not 
less than seventeen (17) members and shall be 
composed of at least the following persons: 

Director, Division of Emergency Manage- 
ment, Department of Crime Control and 
Public Safety, who shall serve as Chair- 
person; 

State Highway Patrol Hazardous Materials 
Coordinator, Department of Crime Control 
and Public Safety; 

Safety Director, Department of Agriculture; 

Supervisor, Facilities Assessment Unit, Di- 
vision of Environmental Management, De- 
partment of Environment, Health, and 
Natural Resources; 

Director, Solid Waste Management Divi- 
sion, Department of Environment, Health, 
and Natural Resources; 



404 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



EXECUTIVE ORDERS 



Director, Radiation Protection Division, 
Department of Environment, Health, and 
Natural Resources; 

Director, Office of Waste Reduction (Pol- 
lution Prevention Program), Department of 
Environment, Health, and Natural Re- 
sources; 

Director, Emergency Planning, Division of 
Highways, Department of Transportation; 

Chief, Transportation Inspection, Division 
of Motor Vehicles (Enforcement Section), 
Department of Transportation; 

Manager, Training Standards Program, Fire 
and Rescue Services Division, Department 
of Insurance; 



Chief, Emergency Medical Services, Divi- 
sion of Facility Services, Department of 
Human Resources; and 

Six at-large members from local government 
and private industry with technical expertise 
in the emergency response field to be ap- 
pointed by the Governor and serve for terms 
of two (2) years at the pleasure of the Gov- 
ernor. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, this the 23rd day of April, 
1992. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



405 



IN ADDITION 



[G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of J 965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:LLT:NT:gmh 

DJ 166-012-3 Voting Section 

92-0845 P.O. Box 66128 

Washington, DC. 20035-6128 

April 20, 1992 

Richard J. Rose, Esq. 

Povner & Spruill 

P. O. Box 353 

Rocky Mount, North Carolina 27802-0353 

Dear Mr. Rose: 

This refers to the annexation [Ordinance No. 191 (1991)] and the designation of the annexed area 
to an election district for the City of Rocky Mount in Edgecombe and Nash Counties, North Carolina, 
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 
42 L'.S.C. 1973c. We received your submission on February 24, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 



John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



406 7:5 NORTH CAROLINA REGISTER June I, 1992 






IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 

JRD:MAP:RA:lrj 

DJ 166-012-3 Voting Section 

92-1264 P.O. Box 66128 

Washington, D.C. 20035-6128 

May 7, 1992 

DeWitt F. McCarley, Esq. 

City Attorney 

P. O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCarley: 

This refers to seven annexation (Ordinance Nos. 2343, 2354, 2377, 2378, 2379, 2391 (1991) and 
2407 (1992)| and the designation of the annexed areas to single-member districts for the City of 
Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 
of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on 
March 16, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



Bv: 



Steven H. Rosenbaum 
Chief, Voting Section 



7:5 NORTH CAROLINA REGISTER June 1, 1992 407 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



North Carolina Wildlife Resources Commission 



The North Carolina Wildlife Resources Commission will accept comments until July 1, 1992, on 15A 
NCAC 101 .0001 and 15A NCAC 101 .0006 which were published in Volume 7, Issue 1, pages 48-52 
of the North Carolina Register on April 1, 1992. 



408 7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



No 



otice is hereby given in accordance with G.S. 
I50B-21 .2 that the Director of the Division of 
Mental Health, Developmental Disabilities and 
Substance Abuse Sendees intends to amend 
rule(s) cited as 10 NCAC 14C .1010, .1014, 
.1115; and repeal rule(s) cited as 10 NCAC 14C 
.1007, .1009. 



Th 



he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on June 30, 1992 at the Albemarle Building, 
325 N. Salisbury Street, 1 1th Floor Conference 
Room, Raleigh, N.C. 27603. 

J\easons for Proposed Actions: 

* The rules listed below are accounting rules and 
set forth requirements for area programs in pro- 
viding mental health, developmental disabilities 
and substance abuse services. 

10 NCAC I4C .1007 - Contracts with Consultants, 
.1009 - Contracts for Professional Services - To in- 
corporate the content of these Rules into 10 
NCAC 14C .1010 to have all contract-related 
rules in one section. 

10 NCAC 14C .1010 - Contract Requirements for Area 
Programs - To pull together all content relative to 
contracts into one rule. Contract rules were pre- 
viously located in several sections. The proposed 
changes will combine all contract regulations into 
one section and update the rules to be consistent 
with Division policies and structure. 

10 NCAC 14C .1014 - Expenditure of Categorical 

Funds - The fund balance provisions are revised to 
reflect consistency with other Division policies. 
The fund balance rule is changed to permit area 
programs to establish the fund balance provisions 
for their contract providers. This change is con- 
sistent with Division policy to allow area programs 
to establish, within reason, policies concerning 
contract providers. 

10 NCAC 14C .1115 - Funding Group Homes for 
Mentally Retarded Adults - For residents who earn 
a relatively high level of monthly income, this 
change would allow the resident and the home to 
share in the costs of higher rent required by HUD, 
thus allowing them to remain in the home. Recent 
advances in vocational programming (supported 



employment) have resulted in many DD residents 
of HUD -financed group homes earning substan- 
tially greater amounts of money and exceeding the 
HUD income criteria. HUD then requires a rent 
supplement. Homes typically have not had re- 
sources to pay the full amount of this supplement 
and were forced to restrict admissions or limit the 
residents' vocational option. This Rule would re- 
sult in a sharing of fiscal responsibility for the rent 
supplement between the resident and the home, 
and thus make continuity of residential placement 
more feasible for both. 

(comment Procedures: Any interested person 
may present his comments by oral presentation or 
by submitting a written statement to Charlotte 
Tucker, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 
N. Salisbury St., Raleigh, N.C. 27603. Written 
comments must state the rules to which the com- 
ments are addressed, and be received in this office 
by 6/30/92. Persons wishing to make oral pres- 
entations should contact Charlotte Tucker at the 
above address by June 29, 1992. Time limits for 
oral remarks may be imposed by the Division Di- 
rector. Fiscal information on these Rules is 
available upon request. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER I4C - GENERAL RULES 

SECTION .1000 - ACCOUNTING STANDARDS 

FOR ALL RECIPIENTS OF FUNDS 

ADMINISTERED BY THE DIVISION 

.1007 CONTRACTS WITH CONSULTANTS 

(a) AM- proposed oontraoto witb consultants 
shall be reviewed by tbe appropriate Regional 
Director. 

fb) Contracts to provide honoraria fet guest 
speakers shall be considered contracts with oon 
sultants. 

Statutory Authority G.S. 122C-147. 

.1009 CONTRACTS FOR PROFESSIONAL 
SERVICES 

(a) AM contracts between a» area program a»4 
a»y party fof tbe perform <m ee ef professional 
services ef that- party shall t*e»a standard form 
provided by tbe afea program. Such forms shall 
require such information a* toe nam e s el Ae 
contracting parti e s, duties to be performed by toe 
parties, dates ef employment, rates e£ pavr afid 
transportation, meals a«4 lodging expenses to be 
provid e d to toe professional. 

fb) AH requests fof reimbursement fof prof e s 
sional services render e d to a» afea program shall 



7:5 NORTH CAROLINA REGISTER June /, 1992 



409 



PROPOSED RULES 



be made upon a standard form providod fey the 
afea program Such forms shall r e quir e the 
names ei both contracting parties, the addross 
ami social fiocurity number »f the professional 
person, the dates ef s e nde e , the Fate ef- pay- ami 
total amount owing, ami the signature »f the 
professional person. 

Statutory Authority G.S. 143B-10. 

.1010 CONTRACT REQUIREMENTS FOR 
AREA PROGRAMS 

(a) This Rule applies to all contracts between 
an area program (hereafter referred to as "con- 
tractor") and contract providers (hereafter re- 
ferred to as "contractecs"). lor purposes of this 
Rule, contractees include: 

( 1 ) an individual with whom a contract is 
made for professional services, including 
consultants and guest speakers; and 

(2) an agency with whom a contract is made 
for the provision of services to one or 
more clients. 

(b) The basis for the relationship between the 
area program and the consultant or profit or 
non-profit contract agency shall fee established 
during the development ef the is the written 
contract. All contracts mutual understandings 
and expectations shall conform with the applica 
We requirements ef the accounting rules codified 
m Sections . 1 000 ami . 1 100 &£ this Subchapter 
ami 4£ NCAC U& tOQ06t be clearly stated m 
the contract. Ail contracts e nt e r e d »m> Con- 
tracts between an area program and a private 
non profit contractor consultant or profit or 
non-profit contract agency for provision of ser- 
vices to clients shall utilis e either the tmit eest 
basis fset eest pef «mt »f servico) »f the total eest 
basis with foe item expenditure budget control. 
AH written contracts between a» afea program 
ami a»y oth e r contracting party m>t otherwise 
described » this Section shall contain the foi- 
lowmg information: contain, at a minimum, the 
information as indicated in this Rule. The area 
program may require additional information it 
deems necessary. Minimum requirements for all 
contracts shall be: 

( 1 ) names of the contracting parties; 

(2) beginning and ending dates of the con- 
tract period; the area program shall rene- 
gotiate and renew em review, at least a» 
annual basis annually, all contracts w+th 
contracting parlies which are to be con 
tinued: continue; 

(3) detailed description of the work ami ser- 
vices contracted fof to be provided and 
the expectations of the parties; 



(4) the amount ef aay payments required hh- 
4ef the contract; amount and method of 
payment; 

( 5) the method ef payment; address and social 
security number or IRS identification 
number of "contractee"; 



(6) requirements e£ financial ami program Fe- 
ports from the party contracting with the 
area program which should be submitted 
m> lew than quarterly documenting com 
pletion &( services rendered ami degroo te 
which the objectives specified havo boon 
met; the following statement when a con- 
tract period is greater than 30 days: ' This 
contract may be terminated at any time 
upon mutual consent of both parties or 
30 days after one of the contracting parties 



(7) 



av 



es notice of termination; 



a. 1 1 ni 1 ! 1 1 BM3Q hiin i*iit to *" a 1 1 1 1 1 1 '"■'"* eA pacu 
cr uiiv ituht uuu t,f t i u i cr \.\j ecq c^ct^^ ^Td^n^ 

contract; a statement which indicates that 
the contract may be terminated imme- 
diately with cause upon written notice to 
the other party; the cause shall be docu- 
mented in writing to the other party de- 
f ailing the grounds for termination; and if 
applicable, the contract may contain a 
provision indicating method of payment 
of liquidation damages upon such termi- 
nation; 

(8) a statement that client r e cords e£ the ees- 
tract agency shall be accessible fof review 
fo the purpose ©f monitoring sorviooo 
r e nd e r e d, financial audits fey third party 
payors, research ami evaluation; a clause 
which indicates that the "contractor" 
(area) is held harmless from acts commit- 
ted bv the contractor; 

(9) the following statement where indicated: 
"This contract may fee terminatod at a»y 
time upon mutual consent ef both parties 
e* 3© days after «» »f the contracting 
parties gives notice ef termination." ami a 
provision indicating method el payment 
afi4 liquidated damages, if asyr upon s+jeh 
termination; signature of each party to the 
contract; and 

(10) a statement which indicates that the eeft- 
tract may fee terminated at asy tim e fef 
caus e without a tim e period notic e te the 
other party; the cause shall be docu - 
mented » writing t» the other party de- 
t ailing the grounds fof termination; ami 
the contract shall contain a provision fo 
dicating method (4 payment ami liqui - 
dated damages, if aftyr upon s«eh 
termination; a pre-audit statement in ac^ 
cordance with G.S. 159-28. 



410 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(44) the signatures af eaeb party to the 6e«- 
traot; 

(44) a roquiromont that the party contracting 
with the area program shall make avail 
able to the afea program its accounting 
records fof the purpose ef audit by stat e 
authorities as4 that the party w41h when 
appropriate, have a» annual audit by a» 
independent cortifiod public accountant; 
it is appropriate to require a» audit any 
timo funds pass from the afea program to 
a non profit agency fof servic e s »et roim 
bursed e» a division approved pef «»it 
eest basis ef as oth e nvise specified » toe 

<~i /"*i"»/~\l 1 t~l f | fl i~l t-n i 1 i . ^^Jl U^ r^< 1 I 1 1 i ■i Lr " rl - * ""* * L f ^ ' ' * / -1 *■' ' 

CtC^^^^S^^THTC I (JIVT3 ^^T rTT I V^J till \_ II1U111J IJIULVU 

©» the Division by outsido sources. The 
Division may waiv e the roquiromont ef a» 
audit required by the Division when it is 
dotormin ed that aft audit would eet he 
beneficial. The request top waiver shall 
he » writing to the controller ef the Di- 
vision. Waivers shall net he granted after 
the 4ee date ef the audit; 
(44) a statomont, whore indicated, that title to 
oquipmont purchased under the contract 
remains with the party contracting with 
the afea program as long as that party 
continues to provido the services which 
woro supported by the contract; if such 
Gorvicos afe discontinued, equipm e nt pef- 
chas e d undor the contract &*&f be roallo 

(44) the following statement where indicated: 
"The party contracting with the afea pfe- 
gram shall provide to toe afea program 
data about individual clients fof research 
aft4 study. Such data, excluding cliont 
names, f»ay be further transmitted to the 
Division fof research aft4 study."; 

(44) a statement specifying the procedure fof 
handling budgot revisions if revisions afe 
necessary; 

(44) a statement specifying the procedure fof 
handling aey disagreement between the 
afea program an4 the contract agency; 

(44) a clauso which indicatos that the grantor 
is held- harmless from aets committed by 
the contractor; 

(44) a pro audit statement fo accordanc e with 
General Statuto 159 28; 
(c) Additional requirements when contracting 
with a profit or non-profit agency shall be as 
follows: 



visions for fund balance; and a statement 
which includes: 



(1) either a Division approved unit cost basis 
or the total cost basis (line item budget) 
shall be utilized; a statement specifying the 
procedure for budget revisions and pro- 



(A) the procedure for resolving disagree- 
ment between the contracting parties; 

(B) for total cost contracts, title to assets 
purchased under the contract in whole or 
in part with the area program so long as 
that party continues to provide the ser- 
vices which were supported by the con- 
tract; if such services are discontinued, 



disposition of the assets shall occur as ap- 
proved by the Division; 

(C) client records of the contract agency 
which shall be accessible for review for the 
purpose of monitoring services rendered, 
financial audits of third party payors, re- 
search and evaluation; 

(D) data about individual clients for re- 
search and study which the "contractee" 



shall provide to the area program upon 
request; 

(E) the area program requirement to pro- 
vide to the contract agency all pertinent 
Riles, regulations, standards and other in- 
formation distributed bv the Division 
necessary' for the performance of the con- 
tractor under the terms of the contract; 

(F) the area program requirement to mon- 
itor the contract to assure compliance 
with rules of the Commission, the Secre- 
tary andG.S. 122C-142; 

(G) (4% i» contracts negotiated by the afea 
program with a non profit corporation, a 
statomont that a copy of the independent 
audit referenced in (44) Subparagraph 
(c)(4) of this Rule shall be forwarded to 
the Office of the State Auditor at 300 
North Salisbury Street, Raleigh, North 
Carolina 27611, 27603-5903, with the ex- 
ception of the following: 

(i) (a) sheltered workshops; 
(u) (b) adult developmental activity pro- 
grams; 
(ni) (e) private residential facilities for the 
mentally retarded ae4 developmentally 
disabled; 
(iv) (4) developmental day care centers; 
(v) (e) hospitals; 

(vi) (f) volunteer tire departments; 
(vri) (f) rescue squads; 
(viii) (h) ambulance squads; and 
(ix) (*) junior colleges, colleges or univer- 
sities accredited by the southern re- 
gional accrediting association; 
(2) provisions which outline the responsibil- 
ity of the "contractee" for the adoption, 
assessment, collection and disposition of 
fees in accordance with G.S. 122C-146; 



7:5 NORTH CAROLINA REGISTER June I, 1992 



411 



PROPOSED RULES 



(3) a requirement that the "contractee" with 
the area program shall make available to 
the area program its accounting records 
for the purpose of audit by State authori- 
ties and that the party will, when required 
by general statute, have an annual audit 
by an independent certified public ac- 
countant. 

(-34) a stat e ment specifying the procedure te- 
be employ e d by the area program to- as- 
s«fe that the contract ag e ncy receives aU 
pertinent rules, regulations, standards, atfo 
other information distributed by the 84- 
vision necessary fe* the op e ration e£ the 
contract agency within the requirements 
established by the Commission an4 the 
Division including drafts ef such inform a 
tfo» distributed fof review; 

(-344 » statement specifying that under G.S. 
122C H2 the area program w*li monitor 
the contract te assure compliance with 

1 UIL J CTT CXXO ^T^TTTTTTTTTTTTmT (XI 1U 1 1 l\J L1LI.IL IU1 T 

a»4 applicable General Statutes; an4 
(-33) provisions outlining the responsibility »f 
the a#ea authority a»4 contract provider 
fof the adoption, assessment , collection 
a«4 disposition ef fees i» accordance with 
GtSt 122C 116. 

Statutory Authority G.S. 122C-1 12(a)(6); 
I22C-131; 122C-141; 122C-I42; 122C-146; 
143 B- 10; 159-40. 

.1014 EXPENDITURE OF CATEGORICAL 
FUNDS 

(a) The Division shall allow area programs to 
budget division categorical funds within cost 
centers that also include, but are not Limited to, 
local funds, area matching funds, federal funds 
or other division categorical funds. When area 
programs elect to budget division categorical 
funds within a cost center with such other funds, 
the Division shall consider the Division 
categorical funds to be expended under the fol- 
lowing criteria: 

(1) For all area program operated services: 
contract e d group homos, a»4 othor con 
tracted programs receiving at- least- 4ft pef- 

j * i Wit t \ 1 t r "L *■ *i j l — |iif ^litVii ^J^j-^^^^^^^^ ^J^^a 1^^^^^^^^^^^*^^ 
LL1 1L KJ I 1 1 1 \J U UMIUIHC, iTrlT f T.I CJ T I Irv ITT T^TT " r' 

the following is tbe order ef expenditure: 
(A) special grants from non-divisional 
sources that are for reimbursement of the 
same expenditures as those for which di- 
visional categorical funds are appropriated 
(examples are grants from R.J. Reynolds, 
Division of Youth Services 
Community-Based Alternative Funds); 



(B) block grant funds from the Division; 
and 

(C) state categorical funds from the Divi- 
sion. 

Revenue from non-divisional sources and 
block grant funds shall be deducted from 
total cost center expenditures for the pur- 
pose of determining the net cost upon 
which the state categorical share is based. 
Client-earned income, such as payments 
r ceived from patients or third parties (in- 
surance, Medicare, Medicaid), which is 
received but not expended shall be re- 
tained by the area program or the contract 
program and be used to further the ob- 
jectives of the legislation establishing the 
state categorical funding. When client- 
earned income results in an area pro- 
gram's &f contract program's fund balance 
being in excess of 15 percent of its annual 
operating budget, the amount in excess of 
1 5 percent shall be handled in accordance 
with the Division's rule on fund balances, 
Rule .1125 of this Subchapter. 
(2) F-»f other contracted programs net r e c e iv 
mg at- least 4© percent e4 their funding 
through the Division, stato categorical 
fund expenditures shall be bas e d upon aet- 
eest determined by r e ducing total projoct 
eest by program generated incomo, spe- 
cial grants from non divisional sources 
aft4 block grant funds that- are recoivod by 
the contractor as reimbursement e( the 
samo expenditures as those fof which 
cat e gorical funds are appropriated. 
Program generated income is payment fe- 
c e iv e d from patients ef third parties fof 
services provided a«4 foes recoivod fof 
personal services porformod m connection 
with the categorical grant. For contracted 
programs: 

(A) The area program shall establish an 
expenditure and hind balance policy. 

(B) For contracted services, each contract 
shall detail how the expenditure and fund 
balance policy will apply to the contracted 
service. 

(C) If the area program contracts with a 
provider that also provides non-area pro- 
gram contractual services, the contracted 
provider shall be required to identify the 
fund balance for the area program con- 
tracted service only. 

(b) Expenditures for Title 2^- &£ the Social 
S e curity Aeh 43 U.S.C. 4405 through 1397(f), - 
Social Services Block Grant total cost programs 
shall continue to be budgeted and expended in 



412 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



accordance with applicable Title XX matching 
formula and eligibility criteria. 

(c) State and Title XX Social Services Block 
Grant adult developmental activity program 
funding shall, unless a total cost method of re- 
imbursement is authorized by the Division, be 
based upon a unit cost rate determined by cost 
studies conducted by division staff. The re- 
imbursement rate shall be based upon actual net 
cost (total cost less other sources of support) or 
the statewide maximum rate, whichever is less. 

(d) State subsidy payments for montal retarda 
tie» developmental disabilities day care and 
montal retardation developmental disabilities 
community residential service shall continue to 
be reimbursed on a statewide rate. 

(e) Block grant funds shall be the first dollar 
expended after special grants from non-divisional 
sources so long as these funds do not supplant 
local or state funds. For the purpose of deter- 
mining whether block grant funds are being used 
to supplant local or state funds within a current 
year, the prior year expenditure data shall be 
used. All revenues resulting from the block grant 
funded project shall be used by the service which 
produced the revenue. If existing services cannot 
be expanded or new services started, the revenues 
shall be used to reduce the amount of block 
grant. 

Statutory Authority G.S. 122C-112; 122C-147. 

SECTION .1 100 - STATE AND FEDERAL 
FUNDS ADMINISTERED 

.1115 FUNDING GROUP HOMES FOR 
MENTALLY RETARDED ADULTS 

(a) Pursuant to G.S. 122C-141, the Division 
shall administer a program of grants to area pro- 
grams to be called funds for group homes for 
mentally retarded adults. 

(b) Such grants shall be used to support group 
homes for mentally retarded adults. 

(c) Adults in whose behalf funds are adminis- 
tered to programs shall be: 

(1) 1 8 years of age and older; and 

(2) residents of North Carolina. 

(d) To be eligible for funds for group homes for 
mentally retarded adults, the community shall 
provide residents with a total array of services 
and programs to meet their various needs and 
levels of capability and not just 24-hour care. 
These programs shall promote a complete life for 
these individuals in a community setting. 

(e) Funds for group homes for mentally re- 
tarded adults shall be administered to area pro- 
grams as direct grants and do not require local 
matching. 



(f) Programs may spend funds for group homes 
for mentally retarded adults for the following: 

(1) to rent or lease facilities; 

(2) furniture or specialized equipment for res- 
idents; 

(3) transportation of residents; 

(4) other necessary operating expenses as ap- 
proved by the Division; and 

(5) the purchase, construction or alteration, 
improvement or repair of a facility by the 
area program or a non-profit board with 
division approval with the exception of 
programs participating in federal Depart- 
ment of Housing and Urban Develop- 
ment (HUD) Section 202 projects which 
shall follow the requirements specified in 
(f)(6) of this Rule. The program shall 
meet the following requirements: 

(A) The Group Home Mortgage Payment 
Program. The Division may participate 
in the mortgage payment program in part 
contingent upon the availability of state 
funds. 

(B) The Group Home Purchase/ Con- 
struction Program. 

(i) The Division may participate in the 
down payment or lump sum purchase 
or construction of a group home in 
whole or part contingent upon the 
availability of state funds. 

(ii) The area program or non-profit board 
shall secure two property appraisals for 
review and approval by the Division 
prior to purchase. 

(iii) If a new construction grant is re- 
quested, the area program shall submit 
two construction bid contracts from 
two building contractors to the appro- 
priate regional office for review and ap- 
proval prior to construction bid letting. 

(C) A request for initial renovation of a 
newly acquired facility of five thousand 
dollars ($5,000) or less shall be submitted 
to the appropriate regional office of the 
Division for approval. Initial minor re- 
pairs to facilities of less than one thousand 
dollars ($1,000) shall be approved by the 
area program. 

(D) A request for alteration or improve- 
ment of an existing facility in excess of five 
thousand dollars ($5,000) shall be for- 
warded to the Division Director's office 
through the appropriate regional office of 
the Division for approval. 

(E) Each request as outlined in (f)(5)(B) 
and (D) of this Rule shall be accompanied 
by a narrative that explains the need for 
the purchase, construction, alteration, im- 



7:5 NORTH CAROLINA REGISTER June I, 1992 



413 



PROPOSED RULES 



provement or repair of the facility and a 
copy of the schematic drawings and spec- 
ifications. If approved by the Division of 
Mental Health, Mental Retardation and 
Substance Abuse Services, these drawings 
and specifications shall be forwarded to 
the Division of Facility Services for review 
and approval. 

(F) If the group home is operated by a 
non-profit board, the area program shall 
sign a legally binding contract with the 
private non-profit agency for either the 
mortgage payments to be made or the 
purchase or construction program as in- 
dicated in (A) and (B) of (f)(5) of this 
Rule. A copy of the appropriate contract 
shall be obtained from the controller's of- 
fice of the central office of the Division. 

(G) If a facility owned by an area program 
or its private non-profit contract agency 
was purchased, altered, improved, or re- 
habilitated using division funds and later 
ceases to be used in the delivery of services 
to clients by the area program or its pri- 
vate non-profit contract agency, the facil- 
ity shall be sold at the current fair market 
value as determined by two independent 
appraisals acceptable to the Division. 
The Division shall be reimbursed a pro 
rata share of the proceeds of the sale based 
on the percent of contnbution made by 
the Division in the purchase, alteration, 
improvement or rehabilitation. The area 
program shall maintain records on a con- 
tinuous basis which reflect the amount of 
contribution for purchase, alteration, im- 
provement or rehabilitation by the Divi- 
sion, area program or other funding 
entity. 

(6) to participate in a federal Department of 
Housing and Urban Development (HUD) 
Section 202 project (12 U.S.C. §1701q)for 
the purchase, construction or alteration, 
improvement or repair of a group home 
with division approval. The program 
shall meet the following requirements: 

(A) The area program may request funds 
for this project from the division. Divi- 
sion. The Division may participate in the 
HUD Section 202 project contingent 
upon the availability of state funds. 

(B) The area program shall sign a legally 
binding contract with a private non-profit 
agency to specify that if the group home 
ceases to be used in the delivery of services 
to the clients, the private non-profit 
agency shall reimburse the Division ac- 
cording to the following requirements: 



(i) If the group home is sold, it should 
be sold at the current fair market value 
as determined by two independent ap- 
praisals acceptable to the Division and 
the Division shall be reimbursed a pro 
rata share of the selling price of the 
group home based on the contribution 
made by the Division in the purchase, 
construction, or alteration, improve- 
ment or repair of the group home. 
(ii) If the group home is retained by the 
private non-profit agency, the Division 
shall be reimbursed a pro rata share of 
the current fair market value of the fa- 
cility as determined by two independent 
appraisals acceptable to the Division 
based on the contribution made by the 
Division in the purchase, construction, 
or alteration, improvement or repair of 
the group home. 
(C) The area program shall maintain a re- 
cord which reflects the amount of con- 
tribution made by the state for purchase, 
construction, or alteration, improvement 
or repair to the group home, 
(g) Fund Balance. 

( 1 ) The Division may allow group homes for 
mentally retarded adults to maintain a 
fund balance of no more than 1 5 percent 
of the current annual budget for the group 
home. 

(2) The 15 percent fund balance shall be gen- 
erated entirely by non-state funds. 

(3) The Division may decrease state appro- 
priation to a group home, thereby neces- 
sitating the group home to utilize its fund 
balance, if the state appropriation is re-. 
quired in order to continue operations at 
another home. 

(4) The 15 percent fund balance allowed shall 
be in addition to the amount the Division 
would allow to remain in the fund balance 
due to restricted donations. 

(5) Except for the restricted donations and the 
15 percent fund balance, funds for group 
homes for mentally retarded adults shall 
be expended last. 

(6) .An allowance for a fund balance for group 
homes that are operated by an area pro- 
gram is made in Rule .1125 of this Sec- 
tion. 

(h) To apply for funds for group homes for 
mentally retarded adults, an annual plan and 
budget for such funds shall be included in the 
appropriate area program's total annual plan and 
budget package when it is submitted to the ap- 
propriate regional office of the Division. 



414 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(i) Funds for group homes for mentally re- 
tarded adults shall be allocated among the regions 
of the Division by the Division Director. 

(j) Based on the approved annual plan and 
budget request submitted and availability of 
funds, allocation of funds for group homes for 
mentally retarded adults to area programs within 
each region shall be made by the Division Di- 
rector or his designee. 

(k) Clients residing in HUD-financed group 
homes, whose monthly income exceeds the 
HUD income criteria set forth in the HUD 
Handbook 33.50 "OCCUPANCY RFQUIRE- 
MENTS OF SUBSIDIZED MULTI-FAMILY 



HOUSING PROGRAMS" and hereby adopted 
by reference including any subsequent amend- 
ments and editions, shall be charged a room and 
board rate higher than the established maximum 
rate in accordance with the provisions of 10 
NCAC 47A .0201. For suchresidents. the excess 
rate shall be payable to HUD. Responsibilities 
and formula for payment of this excess amount 
are as follows: 

(1) Fhe area program or private non-profit 
agency operating the home shall pay an 
amount not to exceed the fust one hun- 
dred fifty dollars (SI 50.00) of the excess 
amount above the HUD allowable maxi- 
mum rate, and 20 percent of any amount 
that exceeds the one hundred fifty dollars 
($150.00). 

(2) The remaining 80 percent of the excess 
amount that exceeds the one hundred fifty 
dollars (SI 50.00) shall either be gaid bv 
the resident or any other party who as- 
sumes the responsibility. 

Statutory Authority G.S. 122C-1 12(a)(6), (11); 
122C-141; 122C-I47. 

****************** 



IVotice is hereby given in accordance with G.S. 
150B-2I.2 that DHRI Division of Medical Assist- 
ance intends to amend rule(s) cited as 10 NCAC 
508 .0402. 

1 he proposed effective date of this action is 
September 1 , 1992. 

1 he public hearing will be conducted at 1:30 
p.m. on July 2, 1992 at the North Carolina Divi- 
sion of Medical Assistance, 1985 U instead Drive, 
Room 132, Raleigh, N.C 27603. 



R 



easons for Proposed Action: 



10 NCAC SOB .0402 - Financial Responsibility and 
Deeming - is being amended to require that when 
an individual under age 21 is in an institution for 
medical, surgical or inpatient psychiatric care, in- 
cluding inpatient treatment for substance abuse, 
and his care and treatment in that institution is 
anticipated to exceed twelve months, the duration 
of care must be reviewed and approved by the 
Division of Medical Assistance for parental finan- 
cial responsibility not to be applied. 
Under G.S. 143-127.1 when a child is in a medical 
institution and a physician has certified that his 
care and treatment is expected to exceed twelve 
months the income and assets of the child's par- 
ents are not included in determining his eligibility 
for Medicaid. If care and treatment are not ex- 
pected to exceed twelve months the parents' in- 
come and resources are counted in determining 
the child's eligibility. 

Evidence suggests that Medicaid policy is being 
abused in order to have the Medicaid Program 
cover inpatient psychiatric care for children under 
age 21 who come from middle and upper income 
families and that inpatient psychiatric placements 
are being used because the program does not cover 
residential treatment. Physicians are signing 
statements that institutional care exceeding 12 
months is required, then children are being dis- 
charged within 3 to 4 months after the admission. 
Some hospitals have developed form certification 
statements that appear to be used across the board 
for physician certifications. Certification of the 
duration of care and treatment is often being 
made by physicians in the psychiatric hospital 
where the child will be admitted. 
The amendment will allow for a medical review 
of the appropriateness of the anticipated duration 
of the care and treatment to determine if in fact 
it can be anticipated to exceed twelve months and 
thus parental financial responsibility not applied. 
If it is determined that the anticipated length of 
care and treatment will not exceed 12 months, the 
income and assets will be counted in determining 
the child's eligibility for Medicaid. 
Additionally, the age limit for parents to be re- 
sponsible for children in AFDC related cases is 
changed from under 19 to under 21 . This corrects 
the rule to agree with federal requirements and 
what is in policy. 



Co 



omment Procedures: Written comments con- 
cerning this amendment must be submitted by July 
2, 1992, to: Division of Medical Assistance, 1985 
Umstead Drive, Raleigh, N.C. 27603, ATTN.: 
Bill Hottel, A PA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



415 



PROPOSED RULES 



fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SL BCHAPTER SOB - ELIGIBILITY 
DETERMINATION 

SECTION .0400 - BUDGETING PRINCIPALS 

.0402 FINANCIAL RESPONSIBILITY AND 
DEEMING 

The income and resources of financially re- 
sponsible persons are deemed available to the 
applicant or recipient in the following situations: 

(1) For aged, blind and disabled cases in a pri- 
vate living arrangement financial responsi- 
bility exists for: 

(a) spouses when living together or tempo- 
rarily absent; 

(b) parents for disabled or blind children un- 
der age 19 who are living in the household 
with them or temporarily absent. 

(2) For aged, blind and disabled cases in long 
term care, financial responsibility exist for: 

(a) spouse to spouse only for the month of 
entry into a long term care facility; 

(b) parents for dependent children under age 
19 in skilled nursing facilities, intermediate 
care faculties, intermediate care faculties 
for the mentally retarded, or hospitals 
whose care and treatment is not expected 
to exceed 12 months as certified by the 
patient's physician. 

(3) For AFDC related cases, except pregnant 
women described at 42 U.S.C. 1396a(l), fi- 
nancial responsibility exists for: 

(a) spouses when living together or one 
spouse is temporarily absent in long term 
care; 

(b) parents for dependent children under age 
4-Q 21_ living in the home with them or 
temporarily absent; 

(c) parents for dependent children under age 
44 2_[ in skill e d nursing facilities inti ' rme 
diato eaft* facilities, or intermediate care 
faculties for the mentally retarded &f b&s- 
pitals whose care and treatment is not ex- 
pected to exceed 12 months as certified in 
writing by th«» pati e nt's their attending 
physician. 

(d) parents for dependent children under age 
21 in institutions for medical, surgical or 
inpatient psychiatric care, including inpa- 
tient treatment for substance abuse, whose 
care and treatment is not expected to ex- 
ceed 12 months, as certified in writing by 
their attending physician and approved by 
the Division of Medical Assistance. 



(4) For pregnant women described at 42 U.S.C. 
1396a(l) financial responsibility exists for: 

(a) The pregnant woman's spouse if living ir. 
the home or temporarily absent from the 
home; 

(b) The father of the unborn child if not 
married to the pregnant woman but living 
in the home and acknowledging paternity 
of the unborn child. 

(5) Parental financial responsibility for children 
in private living arrangements or long term 
care faculties for whom the county has legal 
custody or placement responsibility is based 
on court ordered support and voluntary 
contributions from the parents. 

Authority G.S. 108A-54; 143-127.1; S.L. 1983, c. 
761, s. 60(6); S.L. 1983. c. 1034; S.L. 1983, c. 
1116; 42 C.F.R. 435.602; 42 C.F.R. 435.712; 42 
C.F.R. 435.734; 42 C.F.R. 435.821; 42 C.F.R. 
435.823. 

TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAE RESOURCES 



No 



otice is hereby given in accordance with G.S. 
150B-21.2 that the DEHS'R - Division of Envi- 
ronmental Management intends to amend rule(s) 
cited as 15 A NCAC 2 A .0005. 

1 he proposed effective date of this action is No- 
vember 2, 1992. 

1 he public hearing will be conducted at the fol- 
lowing times, dates and locations: 

June 16. 1992 

7:00 p.m. 

Jenkins Fine Arts Center 

East Carolina University 

Greenville, N.C. 

June 17, 1992 

7:00 p.m. 

Main Room 

Clinton Civic Center 

Clinton, N.C. 

June 22. 1992 

7:00 p.m. 

A uditorium 

Carteret Community College 

Morehead City, N.C. 

June 23. 1992 
1:00 p.m. 



416 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



Ground Floor Hearing Room 

Archdale Building 

Raleigh, N.C. 

June 29, 1992 



7:00 p.m. 

Humanities Lecture Hall 

UNC - Asheville 

Asheville, N.C. 

June 30. 1992 

1:00 p.m. 

Rotary Auditorium 

Mitchell Community College 

State sville, N.C. 

l\eason for Proposed Action: To delegate to the 
Secretary of the Department authority to deter- 
mine which dispersants can be used in the event 
of an oil spill. 

K^somment Procedures: All persons interested in 
this matter are invited to attend the hearings. 
Comments, statements, data and other informa- 
tion may be submitted in writing prior to. during 
or within 30 days after the hearings or may be 
presented orally at the hearings. Oral statements 
may be limited at the discretion of the hearing 
officer. Submittal of written copies of oral state- 
ments is encouraged. For more information about 
the rules, contact Dennis Ramsey or Boyd 
DeVane, Division of Environmental Management, 
P.O. Box 29535, Raleigh, NC 27626-0535, (919) 
733-5083. For copies of the rules, contact Linda 
Jones or Kay Stallings at the same number and 
address. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2A - ORGANIZATION OF 

ENVIRONMENTAL MANAGEMENT 

COMMISSION 

.0005 DELEGATIONS OF ALTHORITV 

(a) The N.C. Environmental Management 
Commission therefore resolves that: 
(1) Whenever in these resolutions and rules 
and,' or regulations there exists a delegation 
of authority to the Director, Office of 
Water and Air Resources (now the Divi- 
sion of environmental management), En- 
vironmental Management), it shall 
become and read as a delegation of au- 
thority to the Secretary of the Department 
of Environment, Health, and Natural Re- 
sources a«4 Community Development to 
act on behalf of the N.C. Environmental 
Management Commission; and 



(2) The Secretary of the Department of Envi- 
ronment, Health, and Natural Resources 
a*4 Community Development, in addi- 
tion to the delegations mentioned in Par- 
agraph (b)H) (a)(1) of this Rule, is hereby 
delegated the authority to issue permits 
for the Environmental Management 
Commission as provided in N.C. General 
Statutes 143-215.1, 143-215.108, 
143-215.109, 143-215.15, 143-215.28, and 
87-88, and to approve the use of chemi- 
cals or other dispersants or treatment ma- 
terials as provided in N.C. General Statute 
143-215. 84(a), and the Secretary or his 
delegate shall report all such issuances or 
approvals to the Commission; and 

(3) The Secretary of the Department of Envi- 
ronment, Health, and Natural Resources 
*h4 Community Development may dele- 
gate such of these authorities to any 
qualified employee of the Department of 
Environment, Health, and Natural Re- 
sources ae4 Community Development 
upon a finding by the Secretary of neces- 
sity in order to effectively and efficiently 
administer and enforce the rules andor 
regulations of the N.C. Environmental 
Management Commission. 

(b) Power to Enter Tri Party Operational 
Agreements. The Commission authorizes the 
Secretary, on behalf of the Commission, to enter 
into any future tri party operational agreements 
among the Commission, the developer of a con- 
dominium project or projects, and the condo- 
minium homeowners' association. The purpose 
of a tri party the operational agreement is to 
provide for an orderly transfer of permits issued 
to condominium project developers by the 
Commission; to identify the party to whom the 
developer will transfer the permit; and to guar- 
antee that transferee homeowners' associations 
will comply with conditions of permits issued 
developers. 

(c) Therefore, the Environmental Management 
Commission hereby resolves that: The Secre- 
tary, Department of Environment, Health, and 
Natural Resources and Community Develop 
ment is authorized to: 

(1) determine eligibility of applicants in ac- 
cordance with Regulation .0201, Rule 
.0201, State Grants, found in Subchapter 
2E of this Title; 

(2) give public notice of each eligible applica- 
tion as required in Regulation .0201, Rule 
.0201, State Grants, found in Subchapter 
2F of this Title; 

(3) notify the applicant of the Commissions' 
recommended grant award as required in 



7:5 NORTH CAROLINA REGISTER June L 1992 



417 



PROPOSED RULES 



Regulation £2&h Rule .0201, State 
Grants, found in Subchapter 2F of this 
Title; 

(4) notify the applicant of a determination by 
the Commission of failure to qualify for a 
grant award as required in Regulation 
rimh Rule .0201, State Grants, found in 
Subchapter 2F of this Title; 

(5) forward to the Department of Adminis- 
tration a Certificate of Eligibility for each 
grant award as required in Regulation 
SZ&h Rule .0201, State Grants, found in 
Subchapter 2F of this Title; 

(6) prepare and file the annual report as re- 
quired in Regulation rQ2$h Rule .0201, 
State Grants, found in Subchapter 2F of 
this Title; 

(7) redelegate any or all of the above duties 
to employees of the Division of environ 
mental management. Environmental 
Management. 

Statutory Authority G.S. 143-2153(a)( 1 ); 
143-215.3(a)(4). 

****************** 



No 



otice is herebv given in accordance with G.S. 
150B-21.2 that the DEHNR - Division of Envi- 
ronmental Management intends to amend rule(s) 
cited as ISA NCAC 2H .0201 - .0203, .0205 - 
.0206, .0208 - .0209, .0211, .0213, .0215, .0217 - 
.0220, .0222; and adopt rule(s) cited as 15A 
NCAC 2H .0223- .0224. 

1 he proposed effective date of this action is No- 
vember 2, 1992. 

1 he public hearing will be conducted at the fol- 
lowing times, dates and locations: 

June 16, 1992 

7:00 p.m. 

Jenkins Fine Arts Center 

East Carolina University 

Greenville, N.C. 

June 17, 1992 

7:00 p.m. 

Main Room 

Clinton Civic Center 

Clinton, N.C. 

June 22. 1992 

7:00 p.m. 

A uditorium 



Carteret Community College 
Morehead City, N.C. 

June 23. 1992 

1:00 p.m. 

Ground Floor Hearing Room 

Archda/e Building 

Raleigh, N.C. 

June 29, 1992 

7:00 p.m. 

Humanities Lecture Hall 

UNC - Asheville 

Asheville, N.C. 

June 30, 1992 

1:00 p.m. 

Rotary Auditorium 

Mitchell Community College 

Statesville, N.C. 



Re 



reasons for Proposed Actions: The existing 
rules have been in need of updating for several 
years. The Division has required several addi- 
tional protection measures that have not been 
added to the rules. Also, some new initiatives, 
such as animal wastes controls, are being consid- 
ered. 



Co 



omment Procedures: A 11 persons interested in 
this matter are invited to attend the hearings. 
Comments, statements, data and other informa- 
tion may be submitted in writing prior to, during 
or within 30 days after the hearings or may be 
presented orally at the hearings. Oral statements 
may be limited at the discretion of the hearing 
officer. Submittal of written copies of oral state- 
ments is encouraged. For more information about 
the rules, contact Dennis Ramsey or Boyd 
De Vane, Division of Environmental Management, 
P.O. Box 29535, Raleigh, NC 27626-0535, (919) 
733-5083. For copies of the rules, contact Linda 
Jones or Kay Stallings at the same number and 
address. 

JT iscal Note: These Rules affect the expenditures 
or revenues of local funds. A fiscal note was sub- 
mitted to the Fiscal Research Division on March 
23, 1992, OSBM on March 23, 1992, N.C League 
of Municipalities on March 23, 1992, and S.C. 
Association of County Commissioners on March 
23, 1992. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2H - PROCEDl RES FOR 
PERMITS: APPROVALS 



418 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



SECTION .0200 - WASTE NOT DISCHARGED 
TO SURFACE WATERS 

.0201 PURPOSE 

These Rules set forth the requirements and 
procedures for application and issuance of per- 
mits for the following systems which do not dis- 
charge to surface waters of the state: 

(1) sewer systems; 

(2) disposal systems; 

(3) treatment works; a«4 

(4) oludgo dispooal systems, residual disposal 
/utilization systems; and 

(5) treatment of petroleum contaminated soils. 



.0202 SCOPE 

These Rules apply to all persons proposing to 
construct, alter, extend, or operate any sewer 
system, treatment works, disposal system, petro- 
leum contaminated soil treatment system or 
oludgo disposal residual disposal/utilization sys- 
tem which does not discharge to surface waters 
of the state, including systems which discharge 
waste onto or below land surface. However, 
these Rules do not apply to sanitary sewage sys- 
tems which are regulated by th# Department ȣ 
Human Resources, permitted under the author- 
ity of the Commission for Health Services. 



Statutory Authority 
143-215. 1. 



G.S. 143-215.3(a)(I); 



Statutory Authority G.S. 
143-21 '5.3(a)(1). 



130A-335; 143-215.1; 



.0203 DEFINITION OF TERMS 

The terms used in this Section shall be as defined in G.S. 143.213 except for G.S. 143-213(15) and 
(18)a. and as follows: 

(1) "Agronomist" means an individual who is a Certified Professional Agronomist by ARCPACS 
(American Registry of Certified Professionals in Agronomy, Crops and Soil) or an individual with 
a demonstrated knowledge in agronomy. 

(2) "Animal unit" means a unit of measurement used to compare different types of animal oper- 
ations, fhe following equivalents based on federal definitions shall apply: 

Animal Animal Unit 



one mature dairy cow 

one slaughter steer or heifer 

one horse 

one hog over 55 pounds 

one hog under 55 pounds 

one sheep 

one duck 

one turkey 

one chicken 



id 

]_0 

2_0 
04 
0.05 

P_i 
02 

0.018 

0.03 



(3) "Animal waste" means livestock or poultry excreta or a mixture of excreta with feed, bedding, 
litter or other materials. 

(4) "Approved animal waste management plan" means a plan to properly collect, store, treat and/or 
apply animal waste to the land in an environmentally safe manner. The best management practice 
or system of practices which comprise the plan must meet the design, construction, operating and 
maintenance standards and technical specifications of the U.S. Department of Agriculture - Soil 
Conservation Service in Section IV of the Field Office Technical Guide or best management 
practices adopted by the Soil and Water Conservation Commission or any combination which the 
approving entity or agency deems to provide water quality protection. Plans are considered ap- 
proved when they are certified by the respective Soil and Water Conservation District, or other 
agencies or entities approved by the Soil and Water Conservation Commission. These agencies 
or entities must certify that the minimum criteria for design and construction are met and that the 
operation and maintenance critena can be met. The land owner must submit this certification to 
the Division of Environmental Management's Central Office on forms supplied by the Division. 
A new certification must be submitted lor each change in land ownership. 

(5) f2} "Bedrock" means any consolidated or coherent and relatively hard, naturally-formed mass of 
mineral matter which cannot be readily excavated without the use of explosives or power equip- 
ment. 

(6) (^ "Building" means any structure or part of a structure built for the separate shelter or enclosure 
of persons, animals, chattels, or property of any kind and which has enclosing walls for at least 50 
percent to its perimeter. Each unit separated from other units by a four hour fire wall shall be 
considered as a separate building. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



419 



PROPOSED RULES 



(7) f-ty "Building drain" means that part of the lowest piping of a drainage system which receives 
waste from inside the building and conveys it to the building sewer which begins ten feet outside 
the building wall. 

(8) (5) "Building sewer" means that part of the horizontal piping of a drainage system which receives 
the discharge ef tf»« from a single building drain and conveys it directly to a public sewer, private 
sewer, or on-site sewage disposal system. Pipelines or conduits, pumping stations and appliances 
appurtenant thereto will not be considered to be building sewers if they traverse adjoining property 
under separate ownership or travel along any highway right of wav. 

(9) (6) "C horizon" means the unconsolidated material underlying the soil solum, which may or may 
not be the same as the parent material from which the solum is formed but is below the zones of 
major biological activity and exhibits characteristics more similar to rock than to soil. 

(10) f34 "Director" means the Director of the Division of Environmental Management, Department 
of Natural Rosourccw aft4 Community Di ' volopmont Environment, Health, and Natural Resources 
or his delegate. 

(1 1) f&+ "Dedicated site" means a site: 

(a) to which oludgo is residuals are applied at rates or frequencies greater than agronomically justi- 
fiable, or where the primary use of the land is for sludgo residual disposal and crop or ground 
cover production is of secondary importance, »f 

(b) any oludgo residual disposal site designated by the Director, or 

(c) where the primary use of the land is for the treatment of soils containing petroleum products and 
crop or ground cover production is of secondary importance. 

(12) fG+ "Division" or "(DEM)" means the Division of Environmental Management, Department of 
Natural Rcaourcos aa4 Community Dovolopmont. Environment, Health, and Natural Resources. 

(13) "Expanded animal waste treatment works and disposal utilization system" me-ans facilities which 
require an increase over the existing system design capacity. 

(14) "Eeedlot" means a lot or building or combination of lots and buildings intended for the confined 
feeding, breeding, raising or holding of animals and specifically designed as a confinement area in 
which animal waste may accumulate or where the concentration of animals is such that a 
vegetative cover cannot be maintained. Pastures shall not be considered feedlots under this Rule. 



(15) (40} "Groundwaters" means those waters in the saturated zone of the earth as defined in 15A 
NCAC 2L. 

(16) (44} "Industrial wastewater" means all wastewater other than sewage and includes: 

(a) wastewater resulting from any process of industry or manufacture, or from the development of 
any natural resource; 

(b) wastewater resulting from processes of trade or business, including wastewater from laundromats 
and eaf vehicle/equipment washes, but not wastewater from restaurants; 

(c) stormwater will not be considered to be an industrial wastewater unless it is contaminated with 
an industrial wastewater; 

(d) any combination of sewage and industrial wastewater; 

(e) municipal wastewater will be considered to be industrial wastewater unless it can be demon- 
strated to the satisfaction of the Division that the wastewater contains no industrial wastewater; 

(f) petroleum contaminated groundwater extracted as part of an approved groundwater remediation 

system. 

( 17) "Infiltration gallery" means a subsurface ground absorption system expressly designed for the 
introduction of previously treated petroleum contaminated water into the subsurface environment. 

( 18) "New animal waste treatment works and disposal utilization system" means facilities which are 
constructed and operated at the site where no feedlot existed previously or where a feedlot has been 
abandoned or unused for a period of two years or more. 

( 19) "Petroleum contaminated soil" or "Soil containing petroleum products" shall mean any soil that 
has been exposed to petroleum products because of any emission, spillage, leakage , pumping, 
pouring, emptying, or dumping of petroleum products onto or beneath the land surface and that 
exhibits characteristics or concentrations of typical petroleum product constituents in sufficient 
quantities as to be detectable by compatible laboratory' analytical procedures. 

(20) "Petroleum product" means all petroleum products as defined by G.S. 143-21 5. 94A(7) and in- 
cludes motor gasoline, aviation gasoline, gasohol. jet fuels, kerosene, diesel fuel, fuel oils (#l-«6), 
and motor oils (new and used). 

(21 ) (44} "Pollutant" means waste as defined in G.S. 143-213(18). 



420 7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



(22) (44) "Private sewer" means any part of a sewer system which collects wastewater from more than 
one building, is privately owned and is not directly controlled by a public authority. 

(23) (44) "Professional engineer" means a person who is presently registered and licensed as a profes- 
sional engineer by the North Carolina State Board of Registration For Professional Engineers and 
Land Surveyors. 

(24) (44) "Public or community sewage system" means a single system of sewage collection, treatment, 
and/or disposal owned and operated by a sanitary district, a metropolitan sewage district, a water 
and sewer authority, a county, a municipality, or a public utility. 

(25) (44) "Public sewer" means a sewer located in a dedicated public street, roadway, or dedicated 
public right-of-way or easement which is owned or operated by any municipality, county, water 
or sewer district, or any other political subdivision of the state authorized to construct or operate 
a sewer system. 

(26) (44) "Rapid infiltration system" means rotary distributor systems or other similar systems that 
dispose of tertiary treated waste at high surface area loading rates of greater than 1.5 gpd/ft 2 . 

(27) (48) "Sludge" "Residuals" means any solid or semisolid waste, other than residues from agri- 
cultural products and processing generated from a wastewater treatment plant, water supply treat- 
ment plant or air pollution control facility permitted under the authority of the Environmental 
Management Commission. 

(28) "Residues from agricultural products and processing" means solids, semi-solids or liquid residues 
from food and beverage processing and handling; silviculture; agriculture; and aquaculture oper- 
ations that are non-toxic, non-hazardous and contain no domestic wastewater. 

(29) (4&) "Sewage" means the liquid and solid human waste, and liquid waste generated by domestic 
water-using fixtures and appliances, from any residence, place of business, or place of public as- 
sembly. Sewage does not include wastewater that is totally or partially industrial wastewater, or 
any other wastewater not considered to be domestic waste. 

(30) (44) "Sewer system" means pipelines or conduits, pumping stations, specialized mode of 
conveyance and appliances appurtenant thereto, used for conducting wastes to a point of ultunate 
disposal. 

(31) "Soil remediation at conventional rates" means the utilization of soils containing petroleum 
products by land application methods, at an evenly distributed thickness not to exceed six inches. 

(32) "Soil remediation at minimum rates" means the treatment of soils containing petroleum products 
by land application methods, at an evenly distributed application thickness not to exceed an aver- 
age of one inch. 

(33) (344 "Soil scientist" means an individual who is a Certified Professional in Soils through the N.C. 
Se4 Soionee Society NCRCPS (N.C. Registry of Certified Professionals in Soils) or a Certified 
Professional Soil Scientist or Soil Specialist by ARCPACS (American Registry of Certified Pro- 
fessionals in Agronomy, Crops and Soils) or a» individual with a- demonstrated knowlodgo m soils 
Gcionoo. a Registered Professional Soil Scientist by NSCSS (the National Society of Consulting 
Soil Scientist) or can provide documentation that he/she meets the minimum education and ex- 
perience requirements for certification or registration by one or more of the organizations named 
in this Subparagraph. 

(34) (43) "Staff means the staff of the Division of Environmental Management, Department of -Na- 
tural Rooourcoo a«4 Community Development. Environment, Health, and Natural Resources. 

(35) (34) "Subsurface ground absorption sewage disposal system" means a waste disposal method 
which distributes waste beneath the ground surface and relies primarily on the soil for leaching and 
removal of dissolved and suspended organic or mineral wastes. Included are systems for public 
or community sewage systems and systems which are designed for the disposal of industrial wastes. 
Land application systems utilizing subsurface sludg e residual injection are not included. 

(36) (34) "Surface waters" means all waters of the state as defined in G.S. 143-213(20) except under- 
ground waters. 

(37) (4$) "Toxicity test" means a test for toxicity conducted using the procedures contained in 40 CER 
261, Appendix II as amended through My 4-r 4486 July 18, 1991 or any later adopted amendments 
or additions of this document, a* is allowed by- <44r 150B 14(c). Copies of this publication are 
available from the Government Institutes, Inc., 4 Research Place, Suite 200, Roekville, MP 
20850-1714 for a cost of thirtv-six dollars (S36.00) each plus four dollars (S4.00) shipping and 
handling. Copies are also available for review at the Division of Environmental Management, 
Archdale Building, 512 N. Salisbury Street, P.O. Box 29535, Raleigh, North Carolina 27626-0535. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 421 



PROPOSED RULES 



(38) f34) "Treatment works or disposal system which does not discharge to surface waters" means any 
treatment works or disposal system which is designed to: 

(a) operate as closed system with no discharge to waters of the state, or 

(b) dispos e dispose utilization of wastes, including residual sludeos, aftef treatment residuals, residues, 

contaminated soils and animal waste, to the surface of the land, or 

(c) dispose of wastes through a subsurface absorption system. 

f3?) "Underground watoro" moano aU wators » the oubourfaco including wat e rs m the unsaturated 
a«4 saturat e d zono. 

(39) "Waste oil" means any used nonhazardous petroleum product other than crankcase oil. 
Crankcase oil mixed with other used nonhazardous petroleum products will be considered as waste 
ojL 

Statutory Authority G.S. I30A-335; 143-213; 143-21 5.3(a)( I ). 

.0205 APPLICATION: PERMIT FEES: SUPPORTING INFORMATION: REQRMTS 

(a) Jurisdiction. Applications for sewer system extensions under the jurisdiction of a local sewer 
system program shall be made in accordance with applicable local laws and ordinances. Applications 
for permits from the Division shall be made in accordance with this Rule as follows. 

(b) Applications. Application for a permit must be made in triplicate on official form completely 
filled out, where applicable, and fully executed in the manner set forth in Rule .0206 of this Section. 
A processing fee as described herein must be submitted with each application in the form of a check 
or money order made payable to N.C. Department of Environment, Health, and Natural Resources. 
Applications may be returned if not accompanied by the processing fee or are incomplete. The signa- 
ture of the consulting engineer or other agent will be accepted on the application only if accompanied 
by a letter of authorization. 

(c) Permit Fees. 

(1) Permit Application Processing Fee. For every application for a new or revised permit under 
this Section, a nonrefundable application processing fee in the amount stated in Subparagraph 
(5) of this Paragraph shall be submitted at the time of application. 

(A) Each permit or renewal application is incomplete until the application processing fee is re- 
ceived; 

(B) For a facility with multiple treatment units under a single permit, the processing fee shall be 
set by the total design treatment capacity; 

(C) No processing fee will be charged for modification of unexpired permits when the modifica- 
tions are initiated by the Director; 

(D) A processing fee of ftfty dollars (S50.00) one hundred dollars ($100.00) will be charged for 
name changes. Name changes requested at the time of permit renewal, with no other changes, 
will be charged the renewal without modification fee; 

(E) A full application processing fee will be charged for all modifications except for name changes; 
this fee will be in the same amount as shown in Subparagraph (5) of Paragraph (c) of this Rule 
for new applications/modifications. 

(F) Permittees requesting new or modified special orders by consent, judicial orders or flow in- 
creases under G.S. 143-215. 67(b), will pay a fee of four hundred dollars ($400.00) 

(2) Annual Administering and Compliance Monitoring Fees. An annual fee for administering and 
compliance monitoring shall be charged in each year of the term of every renewable permit ac- 
cording to the schedule in Subparagraph (5) of this Paragraph. Annual fees will not be charged 
for permits which do not require renewal. 

(A) Collection of annual fees shall begin on the effective date of this Rule. 

(B) Annual administering and compliance monitoring fees must be paid for any facility operating 
on an expired permit after the effective date of this Rule. The Director shall establish an anni- 
versary date for such a facility and notify the responsible party of the requirement to pay annual 
fees. 

(C) For a facility with multiple treatment units under a single permit, the annual administering 
and compliance monitoring fee shall be set by the single treatment system with the highest fee 
in the fee schedule. 

(D) A person with only one permit will be billed annually on an anniversary date to be determined 
by the Division. This will normally be the fust day of the month of permit issuance. 



422 7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



(E) A person with multiple permits may have annual administering and compliance monitoring 
fees consolidated into one annual bill. 

(F) Any permittee which has maintained full compliance with all permit conditions during the 
previous calendar year will have its administering and compliance monitoring annual fee reduced 
by 25 percent. Permittees operating under interim limits, judicial orders, »f special orders by 
consent will not be eligible for any discount. Full compliance will be established if it can be 
certified by the Director that no Notice of Noncompliance, »f Notice of Violation or penalty 
assessment was sent to the permittee during the compliance period being considered. If a Notice 
of Noncompliance or Notice of Violation was based on erroneous information, the Director can 
send a letter of correction to the permittee clearing the record for compliance purposes. 

(G) A change in the facility which changes the annual fee set by Subparagraph (5) of Paragraph 
(c) of this Rule will result in the revised annual fee being billed in all remaining whole permit 
years. 

(H) Closed-loop recycle or evaporative systems, which store or recycle industrial waste and do 
not discharge to the surface water, groundwater or land surface, shall be charged a constant an- 
nual administering and compliance monitoring fee for all sizes of facilities at the fee amount 
shown by Subparagraph (5) of Paragraph (c) of this Rule. 

(3) No fees are required to be paid under this Rule by a farmer who submits an application or re- 
ceives a permit that pertains to farming operations. 

(4) Failure to pay an annual administering and compliance monitoring fee within 30 days after 
being billed may cause the Division to initiate action to revoke the permit. 

(5) Schedule of Nondischarge Fees: 



PERMIT APPLICATION 
PROCESSING FEE 



ANNUAL ADMINISTERING 
AND COMPLIANCE 
MONITORING FEE 



NEW 


TIMELY 






APPLICATIONS 


RENEWALS 






MODIFICATIONS/ 


WITHOUT 




IN 


CATEGORY LATE RENEWALS 


MODIFICATIONS 


STANDARD C 


:ompli 


> 1,000,000 GPD 








Industrial $400. 


$300. 


$1500. 


$1125. 


DomoGtie/Cooling Wator 








Sewage Cooling Water 400. 


300. 


1200. 


900. 


10,0001 - 1,000,000 GPD 








Industrial 400. 


250. 


800. 


600. 


Domootic/Cooling Water 








Sewage/ Cooling Water 400. 


250. 


600. 


450. 


1,001 - 10,000 GPD 








Industrial 400. 


200. 


600. 


450. 


Domootic/Cooling Water 








Sewage /Cooling Water 400. 


200. 


450. 


300. 


</= 1000 GPD and 








Single family dwelling 240. 


120. 









Sludgo 

Residuals Residues 'Compost < / = 300 acres 

400. 



250. 



600. 



450. 



Sludgo "» / — 

Residuals Residues 'Compost > 300 acres 

400. 250. 


1000. 


750. 




7:5 NOR TH CA ROLINA REGIS TER 


June 1, 1992 




423 



PROPOSED RULES 



Soils Remediation: nondedicated (land application, storage and or treatment) 

400. 200. 

Soils Remediation: dedicated (land application, storage and or treatment) 

400. 200. 300. 225. 

Sewer extensions 400. 

(nondelegated) 

Sewer extensions 200. 

(delegated to 
municipalities) 

Closed-loop recycle or 400. 200. 300. 225. 

evaporative system 

(6) If the total payment for fees required for all permits under G.S. 143-21 5. 3(a)( lb) for any single 
facility will exceed seventy-five hundred dollars ($7,500.00) per year, then the total for all these 
fees will be reduced for this facility so that the total payment is seventy-five hundred dollars 
($7,500.00) per year. 

(7) A portion of the permit application processing fees shown in the fee schedule in Subparagraph 
(5) of Paragraph (c) of this Rule will be transferred into the Wastewater Treatment Works 
Emergency Maintenance, Operation and Repair Fund according to the following schedule: 

(A) All nonmunicipal facilities treating domestic wastewater with design flows of 100,000 gallons 
per dav or less, except individually permitted single family dwellings and facilities with design 
flows of less than 1,000 GPD, seventy-five dollars ($75.00); 

(B) Single family dwellings and facilities with design flows of less than 1,000 GPD, forty dollars 
($40.00): and 

(C) All other facilities, zero. 

(8) When the total value of the Wastewater Treatment Works Emergency Maintenance, Operation 
and Repair Fund, as certified by the State Treasurer, is at least seven hundred fifty thousand 
dollars ($750,000.00) at the end of a quarter, the application processing fees for facilities with 
capacities of one hundred thousand gallons per day (100,000 GPD) or less shall be reduced by 
the amounts being transferred under Subparagraph (7) of this Paragraph. This reduction shall 
continue until, at the end of some subsequent quarter, the State Treasurer certifies that the 
fund's balance is less than seven hundred fifty thousand dollars ($750,000.00), in which case the 
full amount of the application processing fees as listed in Subparagraph (5) of this Paragraph 
shall be charged. 

(9) In order to avoid violation of the statutory limit that total permit fees collected in any year not 
exceed 30 percent of the total budgets from all sources of environmental permitting and com- 
pliance programs, the Division shall in the first half of each state fiscal year project revenues 
from all sources including fees for the next fiscal year. If this projection shows that the statutory 
limit will be exceeded, rulemaking shall be commenced in order to have an appropriately ad- 
justed fee schedule which will avoid excessive revenue collection from permit fees. 

( 10) Accompanying the payment of the Annual Administering and Compliance Monitoring Fee 
shall be a written description of current waste minimization and waste reduction activities during 
the past annual billing cvcle and project plans for the present billing cycle to reduce the discharge 
of wastes and pollutants by source reduction or recycling, 
(d) Supporting Documents and Information. This Paragraph outlines those supporting documents 
and information which must be submitted for sewers, sewer extensions, a»4 disposal systems and 
wastewater treatment works which do not discharge to the surface waters of the state. 
( 1) ¥&f afl faciliti e s: General Requirements: 
(A) Required sets of plans and specifications: 

(i) regular projects -- three two sets of detailed plans and specifications for sewer projects and 
four sets of detailed plans and specifications signed »h4 seated by a pgefessieeaJ ongmoer; tor 
all other projects; 
(ii) federal and state grants grants loan projects — four sets of detailed plans and specifications 
plus federal assurances required by appropriate federal agency; 



424 7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(iii) plans and specifications must be signed and sealed by a Professional Engineer. The only 
exceptions from the Professional Engineer requirement are as follows: 

(I) projects proposing the land application of residues, residuals and/or compost at 
agronomic rates, when no storage units are being proposed and no treatment of the material 
is being proposed other than that provided by the soil and exposure to the atmosphere, 

(II) projects proposing the land application of contaminated soils, when no storage units are 
being proposed and no treatment of the material is being proposed other than that provided 
by the soil and exposure to the atmosphere, 

(III) projects for the settling of solids from sand dredging projects or tourist gem mining 
operations, when the only treatment provided is settling ponds or basins, 

(IV) projects utilizing only incinerating toilets, 

(V) projects for the disposal/utilization of animal waste deemed to be permitted in accordance 
with 15A NCAC 2H .0217, 

(VI) projects for ground water remediation that do not consist of any treatment or storage 
units, 

(VII) the Director may on a case by case basis remove this exception based on documented 
or projected environmental impacts and/or nuisance conditions. 

(B) Specifications describing all materials to be used, methods of construction and means for as- 
suring the quality and integrity of the finished project; 

(C) A general location map, showing orientation of the facility with reference to at least two 
geographic references (numbered roads, named streams/rivers, etc.); 

(D) A description of the origin, type and flow of waste to be treated. Waste analysis must be 
extensive enough to allow a complete evaluation of the system to treat the waste and any po- 
tential impacts on the waters of the state; 

(E) When required, a statement submitted that the wastewater treatment facility involved will be 
properly disconnected and the wastewater discharged into an adequate district or municipal 
system when it becomes available; 

(F) Permits which result in construction of faculties which will be funded by public monies may 
require environmental documentation pursuant to the North Carolina Environmental Policy 
Act. Permit applications for which such documentation is required will not be considered 
complete until supported by the required documentation; 

(G) If more than one contiguous acre of land is to be uncovered by a project, documentation 
should be supplied verifying that the applicant has completed or is working with the appropriate 
regional engineer of the Land Quality Section on the completion of an erosion control plan. 

(H) A Residuals Management Plan must be submitted for all treatment systems that generate 

residuals and must include the following: 

ri_l A detailed explanation as to how the residuals will be stabilized. In addition if the residuals 
are generated from a system treating sewage , the explanation must show that the stabilization 
process meets or exceeds EPA's criteria for a Process to Significantly Reduce Pathogens 
(PSRP) as defined in 40 CFR Part 257 Appendix II or any later adopted amendments or 
additions to this document, 

(ii) An evaluation of the residual storage requirements for the treatment facility. A minimum 
of 30 days storage will be required on all facilities. Storage shall be calculated based upon 
average residuals production rate and shall be units separate from the treatment system, i.e., 
not the clariliers, aeration basins nor digestion facilities. Additional storage may be required 
based on the method of final disposition/utilization, 

(iii) A written commitment from a division approved residual disposal/utilization site for the 
acceptance of the residual and which demonstrates that the Division approved site has ade- 
quate capacity to accept the residual, 

(2) For wastewater faculties specified in G.S. 143-215.1 (dl) that are or will be jointly or commonly 
owned, either a copy of a properly executed operational agreement or evidence to show that the 
applicant has been designated as a public utility by the State Utilities Commission. 

(3) For sewers and sewer extensions: 

(A) design flow; 

(B) rate of infiltration in gallons per day per inch of pipe diameter per mile of pipe; 

(C) letter of agreement from owner or proper official of treatment works accepting the wastewater, 
if application is not submitted by owner or proper official having charge of treatment works; 



7:5 NORTH CAROLINA REGISTER June I, 1992 425 



PROPOSED RULES 



(D) plan and profile of sewers, showing their proximity to other utilities and natural features, such 
as water supply lines, water lines, wells, storm drains, surface waters, roads and other trafficked 
areas. 

(E) Construction of sewers and sewer extensions are prohibited in the following areas unless the 
specified determinations are made: 

(i) in a natural area designated on the State Registry of Natural Heritage Areas by a protection 
agreement between the owner and the Secretary of the N.C. Department of Environment, 
Health, and Natural Resources, unless the EMC agrees that no prudent, feasible or techno- 
logically possible alternative exists; 

(ii) in a natural area dedicated as a North Carolina Nature Preserve by mutual agreement be- 
tween the owner and State of North Carolina (Governor and Council of State), unless the 
EMC recommends and the Governor and Council of State agree that no prudent, feasible or 
technologically possible alternative exists. 

(4) For pumping stations: 

(A) design calculations for pump and force main sizing; 

(B) plan and profde of sewers, showing their proximity to other utilities and natural features, such 
as water supply lines, water lines, storm drains, surface waters, roads and other trafficked areas; 

(C) pump station site location map; 

(D) name and classification of adjacent surface waters which could be affected by a failure. 

(5) For subsurface ground absorption systems including infiltration galleries: 

(A) sod evaluation of the disposal site conducted by a sods scientist to adequately evaluate the 
sods to be utilized for treatment and disposal down to a depth of seven feet to include, but is 
not limited to, field descriptions of texture; color; structure, the depth thickness and type of re- 
strictive horizons; pH: the presence or absence and depth of evidence of any seasonal high water 
table; recommendations concerning application rates of liquids, solids, and other wastewater 
constituents; field estimates of saturated hydraulic conductivity in the most restrictive horizon; 
and cation exchange capacity. Applicants may be required to dig pits when necessary for proper 
evaluation of the sods at the site; 

(B) design data; 

(C) plans of complete system including plan and profde and cross section views for all relevant 
system components; 

(D) a map of the site, with topographic contour intervals not exceeding two feet and showing all 
facility-related structures and fences within the property boundary, all test auger borings and or 
inspection pits and the location of all wells, springs, lakes, ponds, or other surface drainage fea- 
tures within 500 feet of the principal waste treatment disposal site(s); 

(E) For systems treating industrial waste and any system with a design flow of over 25,000 gpd, 
a hydrogeologic and sods description of the subsurface to a depth of 20 feet or bedrock, which- 
ever is less. The number of borings shall be sufficient to define the following for the area 
underlying each major sod type at the disposal site: 

(i) significant changes in lithology underlying the site; 

(ii) the vertical permeability of the unsaturated zone and the hydraulic conductivity of the sat- 
urated zone, and 

(iii) depth to the mean seasonal high water table (if definable from sod morphology or from 
evaluation of other applicable available data). 

(F) For all projects with a design flow of greater than 25,000 gpd, a determination of 
transmissivity and specific yield of the unconhned aquifer based on withdrawal or recharge test; 

(G) Information on the location, construction detads, and primary usage (drinking water, process 
water, monitoring, etc.) of all wells within 500 feet of the waste treatment disposal area; 

(H) Degree of treatment (primary, secondary, tertiary); 

(I) For industrial waste a complete chemical analysis of the typical wastewater »f oludgo to be 
discharged, may include but not limited to Total Organic Carbon, BOD, COD, Chlorides, 
Phosphorus, Ammonia, Nitrates, Total Nitrogen, Calcium. Sodium, Magnesium, Sodium 
Adsorption Ratio (SAR) Calculations, Phenol, Total Tnhalomethanes, Toxicity test parame- 
ters, Total Halogunatod Compounds, Total Volatile Organics, Total Conforms and Total Dis- 
solved Solids; 

(J) proposed location and construction detads of a monitoring well network. 

(6) For land application of sludg e residuals on other than dedicated sites: 



426 7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(A) a map of the site with topographic contour intervals not exceeding ten feet or 25 percent of 
total site relief, whichever is less, and showing all facility related structures within the property 
boundary and the location of all wells, pits and quarries, springs, lakes, ponds, or other surface 
drainage features within 500 feet of the disposal site; 

(B) a soil scientist's recommendations, or the recommendations of an individual with at least three 
years experience in evaluation of soils for application of residuals, concerning application rates 
of liquids, solids, minerals and other wastewater constituents; 

(C) a project evaluation conducted by an agronomist including recommendations concerning 
cover crops and their ability to accept the proposed application rates of liquids, solids, minerals, 
and other wastewater constituents; 

(D) project description for the land application system, including treatment, storage, land appli- 
cation method, equipment, and a receiver management plan; 

(E) for industrial wastes, a complete chemical analysis of the typical wastewater or oludgo residuals 
to be applied may include, but is not limited to percent Total Solids, pH, NH3 N, NQ3 N, 
Ammonia, Nitrates, TKN, Total Phosphorus, Potassium, Toxicity test parameters, Cadmium, 
Chromium, Copper, Lead, Nickel, Zinc, Mercury, Arsenic, Selenium, Calcium, Sodium, 
Magnesium and Sodium Adsorption Ration (SAR) Calculations; 

(F) information on the location, construction details, and primary usage (drinking water, process 
water, monitoring, etc.) of all wells within 500 feet of the disposal site; 

(G) For sites previously permitted: Soil evaluation of the application sites by a soils scientist, 
or an individual with at least three years experience in evaluation of soils for application of res- 
iduals, to confirm or establish the soil map through field evaluation of soil texture; color; struc- 
ture; the depth, thickness, and type of restrictive horizons; the presence or absence of seasonal 
high water table within three vertical feet of the surface or subsurface application depth; pH; and 
cation exchange capacity; 

(H) For sites not previously permitted: 

(i) A USDA-SCS soils map of the application site. In addition, a soil evaluation of the appli- 
cation site by a Soils Scientist, to verify the accuracy ef the SCS soils map regarding or an 
individual with at least three years experience in evaluation of soils for application of residuals, 
which includes the soil evaluation and verification of the presence or absence of a seasonally 
high water table or bedrock within three vertical feet of the deepest point of oludgo residual 
application; and cation exchange capacity; 

(ii) If a USDA-SCS soils map of the application site is not available, soil evaluation of the 
disposal site by a soils scientist, or an individual with at least three years experience in evalu- 
ation of soils for application of residuals, down to a depth of seven feet or the "C" horizon, 
whichever is less, to develop a soil map through field evaluation of soil texture; color; the 
depth, thickness, and type of restrictive horizons; the presence ef or absence of a seasonal high 
water table, or bedrock within three vertical feet of the deepest point of sludg e residual appli- 
cation; pH; and cation exchange capacity. 
(I) For sites which are to receive residuals from one or more industrial source, as defined in 15A 

NCAC 2H .0203 specific areas shall be designated and utilized to receive residuals from each 

municipal, regional or industrial source. Residuals from more than one facility under common 

ownership may be considered as a single source. 
(J) Sites will only be permitted in water supply watersheds when allowed by 15A NCAC 2B .0200. 
(7) For spray irrigation, land application of residuals on dedicated sites, or sludge disposal residual 

disposal/utilization systems and treatment works, except for rapid infiltration disposal systems 

and systems for composting oludgo residual for land application: 

(A) a map of the site, with topographic contour intervals not exceeding ten feet or 25 percent of 
total site relief, whichever is less, and showing all facility-related structures and fences within the 
property boundary, all test auger borings and/or inspection pits and the location of all wells, pits 
and quarries, springs, lakes, ponds, or other surface drainage features within 500 feet of the waste 
treatment/disposal site(s); 

(B) the information specified in Subsections (d) (5) (E), (F), (H) and (I) of this Rule; 

(C) soil evaluation of the disposal site conducted by a soils scientist to adequately evaluate the 
soils to be utilized for treatment and disposal down to a depth of seven feet to include, but is 
not limited to field descriptions of texture; color; structure; the depth; thickness and type of re- 
stnetive horizons; the presence or absence and depth of evidence of any seasonal high water ta- 
ble; recommendations concerning application rates of liquids, solids, and other wastewater 



7:5 NORTH CAROLINA REGISTER June L 1992 427 



PROPOSED RULES 



constituents; field estimates or measurements of saturated hydraulic conductivity in the most 
restrictive horizon; and cation exchange capacity. Applicants may be required to dig pits when 
necessary for proper evaluation of the soils at the site; 

(D) a project evaluation and a receiver site management plan (if applicable) prepared by a an 
agronomist and his recommendations concerning cover crops and their ability to accept the 
proposed application rates of liquid, solids, minerals and other constituents of the wastewater; 

(E) complete plans and specifications for the entire system, including treatment, storage, applica- 
tion, and disposal facilities and equipment. Treatment works previously permitted will not need 
to be shown, unless they are directly tied into the new units or are critical to the understanding 
of the complete process; 

(F) a complete chemical analysis of the typical wastewater or sludgo residual to be treated, may 
include but not limited to Percent Total Solids, pH, Total Organic Carbon, BOD, COD, Am- 
monia, Nitrates, TKN, Chlorides, Sodium, Phosphorus, Sulfides, Bicarbonate, Magnesium, 
Calcium, Nitrates, Phenol, Total Trihalomethanes, &P Toxicity test parameters, Total 
Halog e natod Compounds, Total Volatile Organic Compounds, Total Coliforms and Total Dis- 
solved Solids; 

(G) proposed location and construction details of a monitoring well network; 

(H) information on the location, construction details, and primary usage (drinking water, process 

water, monitoring, etc.) of all wells within the 500 feet of the disposal site; 
(JQ for sites which are to receive residuals from more than one source, specific areas should be 

designated to receive residuals from each municipal, regional and industrial source; 
(J) site will only be permitted in water supply watersheds when allowed by 15A NCAC 2B .0200. 

Residuals from more than one facility under common ownership may be considered as a single 

source. 

(8) For systems for composting sludgo and chemically or otherwise stabilizing residuals for land 
application which meet PFRP requirements: 

(A) a map of the processing site, with topographic contour intervals not exceeding 10 feet or 25 
percent of total site relief, whichever is less, and showing all facility-related structures within the 
property boundary and the location of all wells, springs, lakes, ponds, or other surface drainage 
features within 500 feet of the principal waste treatment/disposal site(s); 

(B) complete plans and specifications for the entire system, including facilities and equipment for 
treatment, storage and preparation for disposal; disposal/utilization, as well as a detailed de- 
scription of the process to be utilized; 

(C) for industrial waste, a hydrogeologic description of the subsurface, to a depth of 20 feet or 
bedrock, whichever is less. The number of borings shall be sufficient to define the following for 
the area underlying each major soil type at the disposal site: 

(i) significant changes in lithology underlying the site; 

(ii) the vertical permeability of the unsaturated zone and the hydraulic conductivity of the sat- 
urated zone; and 

(iii) depth to the mean seasonal high water table (if defmable from soil morphology or from 
evaluation of other applicable available data); 

(D) proposed location and construction details of a monitoring well network; 

(E) a detailed marketing and distribution plan; 

(F) a copy of proposed usage guidance to be distributed with the residuals; 

(G) if the residuals are to be packaged, a copy of the proposed label to be used; 

(H) a detailed description of the proposed record keeping system to be used to track the distrib- 
ution and usage of the residuals; 

(1) projects for the land application of compost and chemically or otherwise stabilized residuals 
that arc generated in North Carolina or shipped into North Carolina in bulk form and then 
distributed in bulk form will be required to obtain nondischarge permits from the Division of 
Environmental Management. Fand application site permitting will be required unless the ap- 
plicant can demonstrate to the satisfaction of the Director that site specific permitting is not 
warranted due to the method of distribution and other controls on the application of the mate- 
rial. 

(9) For closed system or recycle disposal systems and treatment works: 

(A) for industrial waste, a complete chemical analysis of the typical wastewater or sludg e residual 
to be discharged, treated, may include but not limited to Total Organic Carbon, BOD, COD, 
Chlorides, Phosphorus, Nitrates, Phenol, Total Trihalomethanes, &£ Toxicity test parameters, 



428 7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



Total Halogonatod Compounds, Total Volatile Organic Compounds, Total Coliforms, Metals 
and Total Dissolved Solids; 

(B) plans and specifications of the entire system. When necessary for an understanding of a 
treatment process, the applicant should also submit process flow diagrams, manufacturers spec- 
ifications and historical operational data from comparable facilities; 

(C) For industrial waste, a hydrogeologic description of the subsurface to a depth of 20 feet or 
bedrock, whichever is less. The number of borings shall be sufficient to define the following for 
the area underlying each major soil type at the disposal site: 

(i) significant changes in lithology underlying the site; 

(ii) the vertical permeability of the unsaturated zone and the hydraulic conductivity of the sat- 
urated zone; and 

(iii) depth to the mean seasonal high water table (if definable from soil morphology or from 
evaluation of other applicable available data). 

(10) For RAPID INFILTRATION SYSTEMS: rapid infiltration systems: 

(A) a map of the site, with a horizontal scale of one inch equal 1,000 feet or less and topographic 
contour intervals not exceeding two feet or 25 percent of the total site relief, whichever is less, 
and showing all facility-related structures and fences within the property boundary, all test auger 
borings and or inspection pits and the location of all wells, springs, lakes, ponds or other surface 
drainage features within 500 feet of the principal waste treatment disposal site(s); 

(B) hydrogeological information describing the vertical and horizontal extent and lithologic char- 
acter of the unconfined aquifer and its hydraulic relationship to the first confined aquifer beneath 
the site and the vertical permeability and thickness of the confining bed. The information must 
also include a determination of the transmissivity and specific yield of the unconfined aquifer, 
determined by either a withdrawal or recharge test; 

(C) a determination of the quality and movement of groundwater and surface water in the area 
and an evaluation of the impact that the proposed system will have on water levels, movement 
and quality of waters; 

(D) complete plans and specifications for the entire system, including treatment storage and rotary 
distributor facilities and equipment; 

(E) the information specified in Rule .0205 (d) (5) (H) of this Section; 

(F) proposed location and construction details of monitoring well network; 

(G) proposed monitoring plan including the method of determining groundwater levels and 
quality of water parameters and frequency of sampling. 

(11) For land application of agricultural products and processing residues on other than dedicated 
sites: 

(A) a map of the site with topographic contour intervals not exceeding 10 feet or 25 percent of 
total site relief whichever is less, and showing all facility related structures and fences within the 
property boundary, all test auger borings and /or inspection pits and the location of all wells, pits 
and quarries, springs, lakes, ponds, or other surface drainage features within 500 feet of the ap- 
plication site; 

(B) a soil scientists recommendations, or the recommendations of an individual with at least three 
years experience in evaluation of soils for application of residuals, concerning application rates 
of liquids, solids, minerals and other wastewater constituents; 

(C) a project evaluation conducted by an agronomist including recommendations concerning 
cover crops and their ability to accept the proposed application rates of liquids, solids, minerals, 
and other residual constituents; 

(D) project description for the land application system, including treatment, storage, land appli- 
cation method, equipment and a receiver management plan; 

(E) a complete chemical analysis of the typical residue to be applied may include, but is not 
Limited to percent Total Solids. pH, Ammonia. Nitrates. TKN, Total Phosphorus, Potassium, 
Calcium, Sodium, Magnesium. Toxicity test parameters. Cadmium. Chromium, Copper. I ead. 
Nickel, Zinc, Mercury, Arsenic, Selenium; 

(F) information on the location, construction details, and primary' usage (drinking water, process 
water, monitoring, etc.) of all wells within 500 feet of the application site; 

(G) For sites previously permitted: 

Soil evaluation of the application sites by a soils scientist or an individual with at least three years 
experience in evaluation of soils for application of residuals to confirm or establish the soil map 
through field evaluation of soil texture: color; structure; the depth, thickness, and type of n> 



7:5 NORTH CAROLINA REGISTER June I, 1992 429 



PROPOSED RULES 



strictive horizons; the presence or absence of seasonal high water table within three vertical feet 
of the surface or subsurface application depth; pH; and cation exchange capacity; 
(H) for sites not previously permitted: 

(i) a LSDA-SCS soils map of the application site. In addition, a soil evaluation of the appli- 
cation site by a Soils Scientist, or an individual with at least three years experience in evalu- 
ation of soils for application of residuals, which includes the soil evaluation and verification 
of the presence or absence of a seasonally high water table or bedrock within three vertical fee 
of the deepest point of residual application; pH; and cation exchange capacity; 
(ii) if a USDA-SCS soils map of the application site is not available, soil evaluation of the 
disposal site by a soils scientist, or an individual with at least three years experience in evalu- 
ation of soils for application of residuals down to a depth of seven feet or the "C" horizon, 
whichever is less, to develop a soil map through field evaluation of soil texture; color; the 
depth, thickness, and type of restrictive horizons; the presence or absence of a seasonal high 
water table, or bedrock within three vertical feet of the deepest point of residual application; 
and cation exchange capacity. 
(I) if Best Management Practices (BMPs) are developed for a specific residual and approved by 
the Director, they may be submitted as part of the apphcation package. Depending on the 
material and the detail of the BMP, some of the information contained in Subparagraphs 
(d)( 1 1)(A)-(H) of this Rule may not be required to be submitted as part of the application 
Any item listed in Subparagraphs (d)( 1 1 )(A)-( H) that is not submitted as part of the apphcation 
must be specifically addressed in the BMP. Each application will' be evaluation individually and 
the Director reserves the right to determine that a specific residual has characteristics that do not 
allow it to be covered bv all or part of a BMP. 
(12) tor Disposal and or Treatment of Soils Containing Petroleum Product by I andt'arrning or 
Storage and Treatment in Containment Structures: 
(A) for all applications: 

(i) a complete chemical analysis of the typical petroleum contaminated soil to be remediated, 
including but not limited to, total petroleum hydrocarbons (TPH), semivolatile and volatile 
hydrocarbons (per L'.S. HPA methods S24D and S270), pH, and heavy metals, 
(ii) a determination of hazardous waste constituents using the Toxicity Characteristic Leaching 
Procedure (TCLP) described in 40 CFR 261.24. Any substance shall be considered a haz- 
ardous waste if the results of the TCLP analysis indicates concentrations of constituents 
greater than the federal regulatory level, unless documentation is provided stating that the 
petroleum contaminated soil is not a hazardous waste regulated under Subtitles C or D of 
RCRA. A TCLP analysis will be required for all permit applications to dispose of petroleum 
contaminated soil in accordance with the following criteria: 

(I) if the source of the soil contamination is a virgin (unused) petroleum product, from an 
underground storage tank regulated under Subtitle I of RCRA, the contaminated soil shall 
not be considered a hazardous waste and no TCLP analysis, is required. In lieu ot the 
TCLP analysis certification of soil contamination from a virgin petroleum product will be 
required, 

(II) if an analysis of the source of petroleum product is submitted showing concentrations less 
than the regulatory - level associated with the constituents of the TCLP analysis ( Table II. 2 
of the Federal Register, Volume 55, No. 61), the contaminated soil shall not be considered 
a hazardous waste and no TCLP analysis will be required, 

(III) for soils contaminated with used motor oil, the soils will be considered hazardous until 
proven otherwise by a TCI P analysis for metals onlv ( F PA Hazardous Waste Nos. 
D004-DPH), 

(IV) for soils contaminated by waste oil, a TCLP analysis for all constituents in Table II. 2 
of the Federal Register, Volume 55. No. 61, with the exception of pesticides and herbicides, 
shall be required, 

(V) for soils contaminated with petroleum products not regulated under Subtitle I of RCRA 
(excluding used motor and waste oils), the soils will be considered hazardous until proven 
otherwise bv procedures specified by the Department. 

(iii) a scaled map of the site, with a horizontal scale of one inch equals 100 feet or less and 
topographic contour intervals not exceeding 10 feet or 25 percent of total site relief, whichever 
is less and showing: 
(I) all property boundaries and all structures within the property boundary. 



430 7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(II) the location of all wells, springs, lakes, ponds, or other surface drainage features within 
500 feet of the waste disposal site; and 

(III) any residences within 400 feet of the waste disposal site. 

(iv) confirmation that an erosion control plan has been submitted to the Division of Land 
Quality or its delegation, for disposal sites encompassing more than one (new law) acre, 

(v) an indication of cover crop(s), 

(vi) the volume of petroleum contaminated soil to be remediated, 

(vii) landowners agreement to allow the use of the property for the purpose of remediating 
petroleum contaminated soil. Not required when the permit applicant is the sole landowner, 

(B) for Soil Remediation at Minimum Rates: 

(i) a calculation of the area required for landfarming using the maximum application thickness 

of one inch, 
(ii) an indication of cover crop(s), 

(C) for Soil Remediation at Conventional Rates (dedicated or non-dedicated sites): 

(i) a soils evaluation report of the disposal area, conducted by a soils scientist, to adequately 
evaluate the soil to a depth of five feet. The Report shall include, but is not limited to: 

(I) field descriptions of texture, color, and structure, 

(II) depth and thickness of soil horizons, 

(III) presence of any restrictive horizons, 

(IV) depth to seasonal high water table, 

(V) soil pH and cation exchange capacity, and 

(VI) estimates of liming and fertilization requirements, 

(ii) the calculation of the size of the disposal area, thickness of application, and proposed cover 

crop, 
(iii) a site maintenance plan, 

(iv) the items listed in Subparagraph (d)(12)(A) of this Rule, 
(v) proposed groundwater quality monitor well network (dedicated sites only), 

(D) Bioremediation and volatilization on impermeable surfaces: 

(i) a soil evaluation of the disposal area conducted by a soils scientist to adequately evaluate the 
soil down to a depth of five feet to include but is not limited to, field descriptions of texture; 
color; and structure, depth and thickness of soil horizons, presence of any restrictive horizons, 
and depth to seasonal high water table, 

(ii) the plans and specifications of the soil contaminant vessel and any associated leachate col- 
lection system, including the operating thickness of the soil to be contained and treated, 

(iii) a description of the chemical or biological additives used in treating the contaminated soil, 

(E) containment and utilization at brick, asphalt, or other production facilities, 

(i) a site management plan, consisting of a complete description of all operational procedures 
related to the handling of soils containing petroleum product at the proposed facility, includ- 
ing the following items: 

(I) a description of the staging area(s) designated for initial receipts of the petroleum con- 
taminated soils, 

(II) the method of emplacement of the soils in the containment area(s), 

(III) the average residence time of the soils in the containment area, 

(IV) the method of incorporation of the soils into the production facilities product materials, 

(V) the method of containment and disposal of any leachate or runoff resulting from the 
containment and storage of petroleum contaminated soils, 

(ii) the items listed in Subparagraph (d)(12)(A) of this Rule, 

(F) for Soil Remediation Using Mobile or Portable Self-Contained Facilities: 

(i) a description of the treatment system to include procedures for controlling any vapors, liquid 

or solid by-products of the treatment process, 
(ii) the method by which any bv-products will be disposed, 
(iii) the predicted average concentration of petroleum contaminants in the untreated soil, as 

determined by sampling procedures and analytical methods approved bv the Department, 
(iv) the sampling procedures and analytical methods by which the eoncentration(s) and tvpe(s) 

of contaminants m the treated soil will be determined, 



(v) the method of disposal of the treated soil, 
13) Pump and Haul Permits: 



7:5 NORTH CAROLINA REGISTER June 1, 1992 431 



PROPOSED RULES 



(A) Pump and Haul Permits are not acceptable long term domestic wastewater treatment alter- 
natives. Permits will only be issued to facilities under the authority of the Division of Envi- 
ronmental Management in cases of environmental emergencies, nuisance conditions, health 
problems and, or other unique situations. These permits will only be issued for a period of no 
more than six months unless the Director determines that conditions are such that the final 
waste management options can not be implemented within six months, 

(B) Pump and Haul Permits for nondomestic wastewater will be considered on a case by case 
basis and will only be issued in cases when it can be demonstrated to the satisfaction of the 
Director that no other environmentally superior alternative is reasonably available. 

Statutory Authority G.S. 143-215.1; 143-21 5.3(a); 143-215.3B(b). 



.0206 SUBMISSION OF PERMIT 
APPLICATIONS 

(a) Permit applications, supporting informa- 
tion, and processing fee for permits issued by the 
Division shall be filed with the Director, Division 
of Environmental Management, Department of 
Natural Pieooureos a«4 Community Develop 
meetr Pest- Office Be* 27687, Raloigh, North 
Carolina, 2761 1. Environment, Health, and Na- 
tural Resources, Post Office Box 29535, Raleigh, 
North Carolina 27626-0535. Applications for 
soil remediation projects, on other than dedicated 
sites^ should 



be submitted 



DEM regional office. 



to the appropriate 
Applications for permits 
from local sewer system programs shall be sub- 
mitted directly to the local program director. 
The Division shall not require permit processing 
fees for permits issued by local sewer system 
programs. 



(b) 

loyvs: 

(1) 



(2) 



(3) 

(4) 



Permit applications shall be signed as fol- 

in the case of corporations, by a principal 
executive officer of at least the level of 
vice-president, or his duly authorized rep- 
resentative; 

in the case of a partnership, by a general 
partner and in the case of a limited part- 
nership, by a general partner; 
in the case of a sole proprietorship, by the 
proprietor; 

in the case of a municipal, state, or other 
public entity by either a principal execu- 
tive officer, ranking elected official or 
other duly authorized employee. 



Statutory Authority G.S. 143-21 5. 3(a) ( 1 ); 
143-215.1. 

.0208 STAFF REVIEW AND PERMIT 
PREPARATION 

(a) The staff of the permitting agency shall 
conduct a review of plans, specifications and 
other project data accompanying the application 
and shall determine if the application and re- 
quired information are complete. The staff shall 
acknowledge receipt of a complete application. 



The local government unit or units having juris- 
diction over specific residential projects shall be 
notified of permit applications in accordance with 
N.C.G.S. 143-215.1 (dl). 
(b) If the application is not complete with all 
required information, the application will be re- 
turned to the applicant. The staff shall advise the 
applicant by mail: 



and A a- m 



how the application or accompanying 
supporting information may be modified 
to make them acceptable or complete; 

(2) that the 90 dav processing period required 
in G.S. 143-215.1 and Rule .0209 of this 
Section begins upon receipt of corrected 
or complete application with required 
supporting information. 

(^ that, tf complete plans with aU- required 
information a*e aet- rooubmitted within 6© 
■ days, the application packet w+H be je- 
turnod t» the applicant as "incomplete". 

(c) Pursuant to G.S. 143-215.67(a), the staff of 
the Division shall determine for sewer system 
construction or sewer system extensions, whether 
the treatment works or the sewer system to which 
the proposed system will discharge is adequate to 
receive waste which will be discharged from the 
proposed system. 

(d) For treatment works and disposal systems, 
the staff shall make a site-specific evaluation to 
determine the potential impacts of the proposed 
project on surface and ground water quality. 

(e) If an application is accepted and later found 
to be incomplete, the applicant will be advised 
how the application or accompanying supporting 
information may be modified to make them ac- 
ceptable or complete, and that if all required in- 
formation is not submitted within 30 days that 
the project will be returned as incomplete. 

Statutory Authority G.S. 143-215.3(a)( I ); 
143-21 5.1(b); 143-215.1 (d); 143-215.3(a)(4). 

.0209 FINAL ACTION ON PERMIT 

APPLICATIONS TO THE DIVISION 

(a) The Director shall take final action on all 
applications not later than 90 days following re- 



432 



7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



ceipt of a complete application and with required 
information. All permits or renewals of permits 
and decisions denying permits or renewals shall 
be in writing. 

(b) The Director is authorized to: 

(1) issue a permit containing such conditions 
as are necessary to effectuate the purposes 
of Article 21, Chapter 143, N.C. General 
Statutes; 

(2) issue permit containing time schedules for 
achieving compliance with applicable 
effluent standards and limitations, water 
quality standards and other legally appli- 
cable requirements; 

(3) deny a permit application where necessary 
to effectuate: 

(A) the purposes of Article 21, Chapter 143; 

(B) the purposes of N.C. G.S. 
143-2 15.67(a); 

(C) rules on coastal waste treatment, dis- 
posal, found in Section .0400 of this Sub- 
chapter; 

(D) rules on "subsurface disposal 
svstems," found in Section .0300 ef this 
Subchapter; 15A NCAC 18A .1900 as 
amended through August Y^ 1991 or any 
later adopted amendments or additions. 
Copies are available from the Division of 
Environmental Health, P.O. Box 29535, 
Raleigh, North Carolina 27626-0535; 

(E) rules on groundwater quality standards 
found in Subchapter 2L of this Chapter. 
hold public meetings when necessary to 
obtain additional information needed to 
complete the review of the application. 
The application will be considered as in- 
complete until the close of the meeting 
record. 

(c) If a permit is denied, the letter of denial 
shall state the reason(s) for denial and any rea- 
sonable measures which the applicant may take 
to make the application approvable. 

(4) The Director shall submit to the commie 
s*e» at its regular mootingo a report which con 
tains the action tak e n with respect to emy pormit 
application oinco the last commission mooting. 

(d) (e) Permits shall be issued or renewed for a 
period of time deemed reasonable by the Direc- 
tor. 

Statutory Authority G.S. 143-215.3(a)( 1 ); 
143-215. 1(a); 143-2/5. 1(b); 143-215.1 (d). 

.0211 PERMIT RENEWALS 

Requests for permit renewals are to be submit- 
ted to the Director at least 180 days prior to ex- 
piration unless revoked in accordance with Rule 



(11 



.0213 of this Section. Such requests must be 
submitted with a processing fee as shown in Rule 
.0205(c)(5) of this Section, in the form of a check 
or money order made payable to the N.C. De- 
partment of Environment, Health, and Natural 
Resources. Renewal requests received less than 
180 days prior to p>ermit expiration will be re- 
quired to pay the new application/ 
modification/late renewal fee rather than the 
timely renewal without modification fee. All 
applications are incomplete until required proc- 
essing fees are received, and may be returned to 
the applicant. The processing fee shall not apply 
to any farmer who submits an application which 
pertains to his farming operation. 

Statutory Authority G.S. 143-215.3(a). 

.0213 MODIFICATION AND REVOCATION 
OF PERMITS 

Any permit issued by the Division pursuant to 
these Rules is subject to revocation, or modifi- 
cation upon 60 days notice by the Director in 
whole or part for good cause including but not 
limited to: 

(1) violation of any terms or conditions of the 
permit; 

(2) obtaining a permit by misrepresentation or 
failure to disclose fully all relevant facts; 

(3) refusal of the permittee to allow authorized 
employees of the Department of Natural 
Rosourcos a«4 Community Duvelopmont 
Environment, Health, and Natural Re- 
sources upon presentation of credentials: 

(a) to enter upon permittee's premises on 
which a system is located in which any 
records are required to be kept under 
terms and conditions of the permit; 

(b) to have access to any copy and records 
required to be kept under terms and con- 
ditions of the permit; 

(c) to inspect any monitoring equipment or 
method required in the permit; or 

(d) to sample any discharge of pollutants. 

(4) failure to pay the annual fee for adminis- 
tering and compliance monitoring. 

Statutory Authority G.S. 143-21 5. 3( a) (1 ); 
143-215. 1(b)(2). 

.0215 DELEGATION OF ALTHORITY 

For permits issued by the Division, the Director 
is authorized to delegate any or all of the func- 
tions contained in these Rules except the follow- 
ing: 

( 1) denial of a permit application; 

(2) revocation of a permit not requested bv the 
permittee; 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



433 



PROPOSED RULES 



(3) modification of a permit not requested by 
the permittee. 



Statutory Authority G.S. 
143-215 3(a) (4). 



143-2I5.3(a)(l); 



.0217 PERMITTING BY REGULATION 

(a) I he following nondischarge facilities are 
deemed to be permitted pursuant to G.S. 
143-215. 1(d) and it shall not be necessary for the 



Division to issue separate permits for these facil- 
ities: 

( 1) (*) Treatment New and expanded treat- 
ment works and disposal disposal /utili- 
zation systems which servo facilities 
raining »ft4 feeding animals a»4 de Ret- 
discharge to surface waters ss% deemed to 
be permitted pursuant to G.S. 
113 215.1(d). for animal waste from a 
feedlot serving more than or equal to one 
hundred animal units and which are de- 
signed, constructed, operated and mam- 
tamed to meet the standards and 
specifications of the U.S. Department of 
Agriculture -_ Soil Conservation Service in 
Section IV of the Field Office Technical 
Guide or best management practices 
adopted by the Soil and Water Conserva- 
tion Commission. For new and expanded 
facilities, a buffer (separation) zone of at 
least 100 feet from surface waters and 
drainage systems shall be maintained for: 

(A) constructed facilities such as lagoons, 
ponds and storage structures; 

(B) the land application of animal waste; 
and 

(C) areas where a vegetative cover cannot 
be maintained because of the concen- 
tration of animals, with the exception of 
stream crossings. 

The buffer for the land application of an- 
imal wastes may be reduced to no less 
than 25 teet if the buffer is comprised of 
established vegetation and the method of 
land application and the slope of the site 
are such as not to allow run-off or drift 
from the site during application. I he 
buffer for the land application of animal 
wastes mav be reduced to less than 25 feet 
if other equivalent controls are approved 
by the Soil and Water Conservation 
Commission. These animal concen- 
tration areas and existing animal waste 
lagoons, ponds and storage structures 
which are to be enlarged will be exempt 
trom the minimum separation require- 
ment if it can be documented that no 
practicable alternative exists to meet the 



requirement. In addition to the require- 
ments in this Paragraph, new and ex- 
panded facilities must also obtain "an 
approved animal waste management plan 
before animals are stocked. 
(2) Nondischargjng, treatment works and 
disposal -utilization systems for animal 
waste from feedlot s serving more than or 
equal to 50 animal units which are opera- 
tional on the effective date of these Rule; 
will continue to be deemed to be permit- 
ted, as built, if the land owner submits a 
registration of the facility to the Division. 
on forms supplied by the Division, on or 
before July 31, 1993. After December 3~ 
1997 facilities serving more than or equal 
to 100 animal units will only be deemed 
to be permitted if they can meet the same 
operating and maintenance criteria as for 
new and expanded facilities. These facili- 
ties must also obtain an approved animal 
waste management plan by December 31, 
1997. If this criteria cannot be met, the 
facility must apply for and receive an in- 
dividual nondischarge permit from the 
Division. 



[3] 



Nondischargjng faculties serving less than 
100 animal umts are deemed permitted 
but will be encouraged to follow best 
management practices for water quality 
protection. Facilities that do not follow 
best management practices mav be re- 
quired to apply for and receive an indi- 
vidual permit if the facility is determined 
to have an adverse impact on water qual- 
ity. 
(4) (&} Treatment works and disposal systems 
in the form of solid waste disposal sites 
and composting facilities approved in ac- 
cordance with the rules of the Commis- 
sion for Health Services ate deemed to be 
permitted pursuant to G.S. 1 1J 215.1(d) 
if the Commission for Health Services has 
received the written concurrence of the 
Director. U shall nto be necessary fop toe 
Commission &f toe Division to issu e a«- 
other permit fof ouch works »f systems : 
The term solid waste is used as defined in 
G.S. 130A-290 and includes hazardous 
waste. 

Any building sewer documented by the 
local building inspector to be in compli- 
ance with the N.C. State Plumbing Code. 



£5} Any 



(6) Sites permitted under the authority ot the 
Commission for Health Services tor the 
disposal utilization of residuals septage. 

(7) Individual land application sites receiving 
compost and chemically stabilized resi- 



434 



7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



duals that are demonstrated as being 
nonhazardous and nontoxic, meet EPA s 
criteria for PFRP, are registered by the 
North Carolina Department of Agricul- 
ture as a commercial fertilizer/so il 
amendment, are utilized at agronomic 
rates and are sold and used exclusively in 
bag form. No distinction will be made as 
to whether the material is bagged in North 
Carolina or shipped into the state already 
bagged. 

(8) Storage sites for petroleum contaminated 
soils that are utilized for less than 45 days, 
storage is on H) mil or thicker plastic, 
provisions are made for containing po- 
tential leachate and runoff and approval 
of the activity has been receiving from the 
appropriate DEM Regional Supervisor or 
his designee. 

(9) Land application sites for petroleum 
contaminated soils with volumes of soil 
from each source of less than or equal to 
50 cubic yards and approval of the activity 
has been received from the appropriate 
DEM Regional Supervisor or his 
designee. 

(10) Swimming Pool filter backwash and pool 
drainage that is discharged to the land 
surface or subsurface (excluding the use 
of injection wells). 

(11) Drilling muds, cuttings and well water 
from the development of wells, upon ap- 
proval by the appropriate DEM Regional 
Office. 

(12) Composting facilities for dead poultry, if 
the facilities are constructed and operated 
in accordance with guidelines approved 
by the North Carolina Department of 
Agriculture, are constructed on an 
impervious, weight-bearing foundation, 
operated under a roof and are approved 
by the State Veterinarian. 

(13) Operations that involve routine mainte- 
nance and/or the rehabilitation of existing 
sewer lines. In situations where existing 
sewer lines are undergoing routine main- 
tenance, the existing sewer lines are being 
rehabilitated by constructing or installing 
replacement sewers, or the existing sewer 
lines are being refurbished by the installa- 
tion of some type of sealant or sleeve in- 
side the existing sewer line, a specific 
nondischarge permit is not required. 
These operations will be deemed to be 
permitted as long as all construction and 
installation conforms to the design criteria 
of the Division pursuant to Rule .0219 of 
this Section, as long as new sources of 



wastewater flow are not being connected 
to the rehabilitated sewers, and as long as 
all replacements or newly constructed 
sewers are located in the same proximity 
(same general horizontal and vertical 
alignment) as the existing sewers. If any 
of the criteria in this Paragraph are not be 
adhered to, a site specific permit must be 
requested by the applicant. Additionally, 
once the maintenance and/or rehabili- 
tation activities are completed, a North 
Carolina Professional Engineer's certif- 
ication (form provided by the Division) 
must be submitted to the appropriate Re- 
gional Supervisor for the completed work. 
(b) The Director however may on a case by- 
case basis determine that a facility or a class of 
facilities should not be deemed to be permitted 
in accordance with this Rule and be required to 
obtain individual nondischarge permits. This 
determination will be made based on existing or 
projected environmental impacts and/or nui- 
sances conditions. 



(c) Failure to register or obtain approval of a 
management plan as required by the dates speci- 
fied in Paragraph (a)(1) and (2) of this Rule or 
failure to follow best management practices may 
result in the facility being required to apply for 
and receive and individual nondischarge permit 
and an appropriate enforcement action being in- 
itiated. Penalties assessed may be based on any 
one or a combination of the factors as established 
in N.C.G.S. 143B-282.1(b). 

(d) The Secretary of Environment, Health, and 
Natural Resources is delegated ihe authority to 
assess fines and penalties for the willful discharge 
of animal waste from animal or poultry' feeding 
operations pursuant to N.C. General Statutes 
143-215(e). 

(e) i^ Nothing in this policy Rule shall be 
deemed to allow the violation of any assigned 
surface water, groundwater, or air quality stand- 
ards, and in addition any such violation shall be 
considered a violation of a condition of a permit. 
Further, nothing in this policy Rule shall be 
deemed to apply to or permit activities for which 
a state/NPDES permit is otherwise required. 
The term NPDES means National Pollutant 
Discharge Elimination System. 

Statutory Authority G.S. 130.4-300; 

143-215. 1(a)(1); 143-21 5. 3 ( a), (d). 

.0218 LOCAL PROGRAMS FOR SEWER 
SYSTEMS 

(a) Jurisdiction. Municipalities, counties, local 
boards or commissions, water and sewer author- 
ities, or groups of municipalities and counties 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



435 



PROPOSED RULES 



may apply to the Commission for approval of 
programs for permitting construction, modifica- 
tion, and operation of public and private sewer 
systems in their utility service areas. Permits is- 
sued by approved local programs serve in place 
of permits issued by the Division. 

(b) Applications. Applications for approval 
of local sewer system programs must provide 
adequate information to assure compliance with 
the requirements of G.S. 143-2 15. 1(f) and the 
following requirements: 

(1) Applications for local sewer system pro- 
grams shall be submitted to the Director, 
Division of Environmental Management, 
Department of Natural Roooureoo a«4 
Community Development, Post Offioo 
Be* 276 S 7, Environment, Health, and 
Natural Resources, P.O. Box 27687, 
Raleigh, North Carolina 27611. 

(2) The program application shall include 
copies of permit application forms, permit 
forms, minimum design criteria, and other 
relevant documents to be used in admin- 
istering the local program. 

(3) An attorney representing the local unit of 
government submitting the application 
must certify that the local authorities for 
processing permit applications, setting 
permit requirements, enforcement, and 
penalties are compatible with those for 
permits issued by the Division. 

(4) If the treatment and disposal system re- 
ceiving the waste is under the jurisdiction 
of another local unit of government, then 
the program application must contain a 
written statement from that local unit of 
government that the proposed program 
complies with all its requirements and that 
the applicant has entered into a satisfac- 
tory contract which assures continued 
compliance. 

(5) Any future amendments to the require- 
ments of this Section shall be incorpo- 
rated into the local sewer system program 
within 60 days of the effective date of the 
amendments. 

(6) A professional engineer licensed to practice 
in this state shall be on the staff of the 
local sewer system program or retained as 
a consultant to review unusual situations 
or designs and to answer questions that 
arise in the review of proposed projects. 

(7) Each project permitted by the local sewer 
system program shall be inspected for 
compliance with the requirements of the 
local program at least once during con- 
struction. 



(8) A copy of the permit a«4 plana fof each 
permit issued by the local sewer system 
program shall be sent to the regional office 
of the Division and another copy sent to 
the central office of the Division in 
Raleigh. Copies of the approved plans 
must also be submitted upon request bv_ 
the Division. 

(9) A quarterly semi-annual report shall be 
submitted to the Director with a copy to 
the appropriate DEM Regional Office 
listing for each local permit issued during 
the quarter, the name of the person re- 
ceiving the permit, the permit number, the 
treatment plant receiving the waste, and 
the design flow and the type of waste for 
sewer system extensions or changes. The 
report shall also provide a listing and 
summary of all enforcement actions taken 
or pending during the quarter. The 
quarters begin on January 1, April 1, July 
1, and October 1, and the report shall be 
submitted within 30 days after the end of 
each period. 

(c) Approval of Local Programs. The staff of 
the Division shall acknowledge in writing receipt 
of an application for a local sewer system pro- 
gram, review the application, notify the applicant 
of additional information that may be required, 
and make a recommendation to the Commission 
on the acceptability of the proposed local pro- 
gram. Final action on the proposed local pro- 
gram shall be made by the Commission within 
180 days of receiving a complete application. 

(d) Adequacy of Receiving Facilities. Local 
sewer system programs shall not issue a permit 
for a sewer project which would increase the flow 
or change the characteristics of waste to a treat- 
ment works or sewer system unless the local 
program has received a wntten determination 
from the Division that, pursuant to G.S. 
143-2 15.67(a), the treatment works or sewer sys- 
tem is adequate to receive the waste. The Divi- 
sion staff may, when appropriate, provide one 
written determination that covers all local per- 
mits for domestic sewage sewer projects with 
total increased flow to a particular treatment 
works less than a specified amount and which are 
issued within a specified period of time not to 
exceed 60 days. In no case shall the local sewer 
system program issue a permit for additional 
wastewater if the receiving wastewater treatment 
is in noncompliance with its division issued per- 
mit unless the additional flow is allowed as part 
of a special order or judicial order. 

(e) Modification of a Local Program. After a 
local sewer system program has been approved 
by the Commission, any modification of the 



436 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



program procedures or requirements specified in 
Paragraph (a) of this Rule must be approved by 
the Commission to assure that the procedures 
and requirements remain at least as stringent as 
the state-wide requirements of the Commission, 
(f) Appeal of Local Decisions. Appeal of in- 
dividual permit denials or issuance with condi- 
tions the permit applicant finds unacceptable 
shall be made to the local program authority or 
to an appropriate judicial level. The Commis- 
sion will not consider individual permit denials 
or issuance with conditions to which the 
permittee objects. This Paragraph does not alter 
the enforcement authority of the commission as 
specified in G.S. 143-21 5. 1(f). 



(g) The Division shall maintain a list of all local 
units of government with approved local sewer 
system programs and make copies of the list 
available to the public upon request and payment 
of any reasonable costs for reproduction. The 
list can be obtained from: Permitting and Engi- 
neering Unit Supervisor, Division of Environ- 
mental Management, Water Quality Section, 
P.O. Box 27687, 29535, Raleigh, North Carolina 
27611. 27626-0535. 



Statutory Authority 

I43-2153(a)(I). 



G.S. 



143-215.1; 



.0219 MINIMUM DESIGN REQUIREMENTS 

(a) All facilities requiring a permit pursuant to this Section shall be designed following good engi- 
neering practice and shall not result in nuisance conditions. The plans and specifications for all projects 
must be sealed by a Professional Engineer. The only exceptions from the Professional Engineer re- 
quirement are those allowed in Rule ,Q205(d)( l)(A)(iii), of this Section. 



(b) Waste, including treated waste, shall not be placed directly into, or in contact with, GA classified 
groundwater unless such placement will not result in a contravention of GA groundwater standards, 
as demonstrated by predictive calculations or modeling methods acceptable to the Director. 

(c) Impoundments, trenches or other excavations made for the purpose of storing or treating waste 
will not be excavated into bedrock unless the placement of waste into such excavations will not result 
in a contravention of assigned standards, as demonstrated by predictive calculations or modeling 
methods acceptable to the Director. 

(d) The bottoms of earthen impoundments, trenches or other similar excavations with the exception 
of nitrification fields, infiltration systems, and sewer line excavations shall be at least four feet above the 
bedrock surface, except that the bottom of excavations which are less than four feet above bedrock shall 
have a liner with a hydraulic conductivity no greater than 1 x 10-7 centimeters per second. Liner 
thickness will be that thickness necessary to achieve a leakage rate consistent with the sensitivity of 
classified groundwaters. Separation distances or liner requirements may be reduced if it can be dem- 
onstrated by predictive calculations or modeling methods acceptable to the Director, that construction 
and use of these treatment and disposal units will not result in contravention of assigned standards. 

(e) Industrial waste Waste shall not be applied or discharged onto or below the land surface when the 
vertical separation between the waste and the seasonal high water table is less than one foot. If the area 
is to be utilized for industrial waste and has a separation of less than three feet, and in other areas as 
designated by the Director, a demonstration must be made using predictive calculations or modeling 
methods, acceptable to the Director, that such placement will not result in contravention of classified 
groundwater standards. 

(f) Treatment works and disposal systems utilizing earthen basins, lagoons, ponds or trenches, ex- 
cluding nitrification fields, infiltration systems, and holding ponds containing non-industrial treated 
affluent prior to spray irrigation, for treatment, storage or disposal shall have either a liner of natural 
Tiaterial at least one foot in thickness and having a hydraulic conductivity of no greater than 1 x 10-6 

entimeters per second when compacted, or a synthetic liner of sufficient thickness to exhibit structural 
ntegrity and an effective hydraulic conductivity no greater than that of the natural material liner. 

(g) Except as otherwise provided by these requirements or by terms of a permit, all waste treatment, 
torage and disposal facilities must maintain and operate a groundwater monitoring system as approved 
i>y the Division. The monitoring system must be designed to assess the impact of any discharge on the 
quality of the underlying groundwaters and must be based on the results of the hydrogeologjc investi- 
gation. 

(h) For pumping stations: 

(1) no by-pass or overflow lines; 

(2) multiple pumps shall be provided capable of pumping at a rate of 2.5 times the average daily 
flow rate with any one pump out of service. Pump-on/ Pump-off elevations shall be set such 
that 2-8 pumping cycles per hour may be achieved in the pump station at average flow. If ex- 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



437 



PROPOSED RULES 



tended detention times are necessary due to phased development, the need for odor and corro- 
sion control must be evaluated by the applicant; 

(3) whoro waters classified as WS? SA7 ft ef && could be impacted by- a powor failuro, at least one 
of the following shall be required: 

(A) dual source or standby power supply on site or; 

(B) telemetry systems with sufficient numbers of standby generators and personnel for distribution 
or; 

(C) approval by the Director that the pump station: 

(i) serves a private water distribution system which has automatic shut-off at power failure and 

no elevated water storage tanks, and 
(ii) has sufficient storage capacity that no potential for overflow exists, and 
(iii) is connected to facilities that can tolerate septic wastewater due to prolonged detention; 

(D) where the waters that would be impacted by a power failure are classified as C, the applicant 
may be allowed to show a history of power reliability that would demonstrate that an alternative 
power source or other reliability measures would not be needed. 

(4) 3rb& need fof screened vents must be ovaluated for all wet wells; 

(5) high water audio and visual alarms; 

(6) protection from a 100 year flood; 

(7) restricted access to the site and equipment; 

(8) all-weather roadway to the site; 

(i) For sewer systems and sewer system extensions: 

(1) All building drains and building sewers which are approved by the local building inspector in 
accordance with the North Carolina Building Code are deemed to be permitted by the Envi- 
ronmental Management Commission; 

(2) All sewers shall be designed based upon at least minimum standards which include: 

(A) wastewater flow rate at design loading should result in the sewer flowing approximately half 
full. The sewer must also be evaluated as to its ability to carry peak loadings; 

(B) a velocity of two feet per second; 

(C) construction and operation shall not result in water pollution; 

(D) infiltration rate limited to 3QQ 100 gallons per day per inch of pipe diameter per mile of pipe; 

(E) construction and operation consistent with all applicable local ordinances; 

(F) for public sewers, a minimum eight inch diameter pipe; 

(G) minimum separations: 

(i) Storm sewers (vertical) 12 inches 

(ii) Water mains (vertical-water over sewer) 18 inches 

or 
(horizontal) 10 feet 

(iii) In benched trenches (vertical) 18 inches 

(iv) Any private or public water supply source, 

including any WS-I waters or Class I or 

Class II impounded reservoirs used as a 

source of drinking water 100 feet 

(v) Waters classified WS-+ WS-II, WS-III, B, 

SA, ORW, HQW, or SB [from normal high 

water (or tide elevation)) 50 feet 

(vi) Any other stream, lake or impoundment 10 feet 

(vii) Any building foundation 5 feet 

(viii) Any basement - 10 feet 

(ix) Top slope of embankment or cuts of 2 feet 

or more vertical height 10 feet 

(x) Drainage systems 

(I) Interceptor drains 5 feet 

(II) Ground water lowering and surface drainage ditches 10 feet 
(xi) Any swimming pool 10 feet 
(xii) Ferrous sewer pipe with joints equivalent to water main standards, shall be used where 

these minimum separations cannot be maintained. 'ITie minimum separation shall however 
not be less than 25 feet from a private well or 50 ft from a public water supply well. 



438 7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



(H) three feet minimum cover shall be provided for all sewers unless ferrous material pipe is 
specified. Ferrous material pipe or other pipe with proper bedding to develop design supporting 
strength shall be provided where sewers are subject to traffic bearing loads; 

(I) the maximum separation between manholes shall be 425 feet unless written documentation is 
submitted with the application that the owner/authority has the capability to perform routine 
cleaning and maintenance on the sewer at the specified manhole separation; 

(J) drop manholes shall be provided where invert separations exceed 2.5 feet; 

(K) manholes shall be designed for 100-year flood protection; 

(L) the nood fof an air relief valvoo valve shall be ovaluatod provided at all high points along force 
mains; 

(M) odor and corrosion control must be ovaluatod satisfactorily addressed by the applicant for 
all sewers and force mains with extended travel times, 
(j) For treatment works and disposal systems: 

(1) no by-pass or overflow lines; 

(2) multiple pumps if pumps are used; 

(3) whore wat e ro claooifiod a* WS I, WS II, WS III, &r SA-; e* &B could be impacted by- a pow e r 
failure, at least one of the following: 

(A) dual source/dual feed or automatically activated standby power supply on site, capable of 
powering all essential treatment components under design conditions OTj, 

(B) approval by the Director that the facility: 

(i) serves a private water distribution system which has automatic shut-off at power failure and 

no elevated water storage tanks, and 
(ii) has sufficient storage capacity that no potential for overflow exists, and 
(iii) can tolerate septic wastewater due to prolonged detention or 

(C) where the waters that would be impacted by a power failure are classified as C Waters, the 
applicant may be allowed to show a history of power reliability that would demonstrate that an 
alternative power source or other reliability measures would not be needed. 

(4) protection from 100 year flood; 

(5) buffer zones of at least the following distances, and greater where necessary to comply with 
Section 2H .0400 of this Subchapter or to address particular site or waste characteristics: 

(A) Any habitable residence or place of public assembly under separate ownership or which a*e 
is to be sold: 

(i) for spray irrigation systems (application area) 

not covered by 2H .0219(k) 400 feet 

(ii) for surface oludgo residual application 400 feet 

(iii) for subsurface oludgo residual injection 200 feet 

(iv) for facultative lagoons 400 feet 

(v) for activated sludge plants or surface sand filters -WQ 200 feet 

(vi) for soil remediation sites 100 feet 

(B) Any private or public water supply source 100 feet 

(C) Streams classified as WS4t WS II, WS III or B: 

(i) for subsurface disposal 50 feet 

(ii) for non-discharge surface disposal except for high 
rate infiltration svstems 



(iii) high rate infiltration systems 
(D) Waters classified SA or SB: 

(i) all systems except for high rate infiltration systems 



(ii) high rate infiltration systems 



(E) Any other stream, canal, marsh, or coastal waters: 
(i) for subsurface disposal 

(ii) for non-discharge surface disposal except for high 
rate infiltration svstems 



(iii) high rate infiltration systems 



100 feet 
200 feet 

100 feet 
from normal 
mean high 
water 
200 feet 
from mean 
high water 

50 feet 

100 feet 

200 feet 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



439 



PROPOSED RULES 



(iv) wastewater treatment facilities 
(F) Any Class I or Class II impounded reservoir used as 
a source of drinking water: 
(i) all systems except for high rate 
infiltration sv stems 



(ii) high rate infiltration systems 



(G) Any other lake or impoundment: 

(i) for subsurface disposal 

(ii) for surface disposal except for high 
rate infiltration systems 

(iii) hi ah rate infiltration systems 
(H) Any building foundation except treatment facilities: 

(i) for subsurface disposal 

(ii) for surface disposal 
(I) Any basement: 

(i) for subsurface disposal 

(ii) for surface disposal 
(1) Any property line: 

(i) for spray irrigation 

(ii) for other surface disposal systems 

(iii) for subsurface sludg e residuals injection 

(iv) for other surface treatment systems 

(v) for other subsurface systems 

(vi) for soil remediation sites 
(K) Top of slope of embankments or cuts ef of two feet 
or more in vertical height: 

(i) for systems other than rapid infiltration systems 

(ii) for rapid infiltration systems 
(L) Any water line from a disposal system 
(M) Drainage systems (Ditches, drains, surface water diversions, etc) 



(i) Interceptor drains and surface water diversions (upslope) 

(I) for subsurface disposal 

(II) for surface disposal other than spray irrigation 

systems and rapid infiltration systems 

(III) for spray irrigation systems 

(IV) for rapid infiltration systems 

(ii) Interceptor drains and surface water diversions (downslope) 

(I) for subsurface disposal 

(II) for surface disposal other than spray irrigation 

systems and rapid infiltration systems 

(III) for spray irrigation systems 

(IV) for rapid infiltration systems 

(iii) Groundwater lowering and surface drainage ditches 

(I) for subsurface disposal 

(II) for surface disposal other than spray irrigation 

and rapid infiltration systems 

(III) for spray irrigation systems 

(IV) for rapid infiltration systems 
(N) Any swimming pool: 

(i) for subsurface disposal 

(ii) for surface disposal 
(O) Any other nitrification field (except repair area) 
(P) Any well with the exception of an approved groundwater 
monitoring well 



50 feet 



100 feet 


from normal 


high water 
200 feet 
from normal 


high water 


50 feet 


100 feet 


200 feet 


10 feet 


15 feet 


15 feet 


15 feet 


150 feet 


\m 50 feet 


440 50 feet 


SO 100 feet 
50 feet 


50 feet 


15 feet 


100 feet 


10 feet 



10 feet 



444 


50 feet 
100 feet 
200 feet 


24 


50 feet 


35 


50 feet 
100 feet 
200 feet 


24 


50 feet 


24 


50 feet 
100 feet 
200 feet 




15 feet 
100 feet 
20 feet 



100 feet 



440 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



(Q) Public right-of-way surface disposal 50 feet 

(R) The buffer distance for spray irrigation systems and land application systems other than high 
rate infiltration systems to surface waters and drainage systems listed in Paragraph (j)(5')(E) (G), 
and (M) of this Rule may be reduced to no less than 25 feet if the buffer is comprised of estab- 
lished grasses or naturally occurring uncultivated vegetation and the method of land application 
and the slope of the site are such as not to allow run-off or drift from the site during application; 

(6) adoquato flow equalization fof of at least 25 percent of the facilities permitted hydraulic capacity 
must be provided for all seasonal and or resort facilities and aU other facilities with fluctuations 
in influent flow which may adversely affect the performance of the system; 

(7) preparation of an operational management plan, including restricted access to the site and 
equipment, and, if appropriate, a crop management plan; 

(8) except for facilities for single family residences or as approved by the Director, appropriate 
monitoring wells designed to assess the impacts on the groundwater of any discharge and con- 
structed in accordance with Section 2C .0100 of this Chapter; 

(9) a minimum of 30 days of residual holding must be provided. 

(k) For Land Application of Domestic Wastewater on Golf Courses and Other Public Access Areas: 

(1) Aerated flow equalization facilities with a capacity of at least 25 percent of the daily system 
design flow. 

(2) All essential treatment a&4 dispooal units shall be provided in duplicate. 

(3) The treatment process shall produce an effluent with a monthly average TSS of less than 5 mg/1 
and a daily maximum TSS of less than 10 mg/1 and a maximum fecal coliform level of less than 
1 / 1 00 5/ 1 00 ml, prior to discharge to a five-day detention pond. 

(4) There must be no public access to the five-day detention pond. 

(5) The size of the any irrigation pond, that follows the five day holding pond, shall be justified 
using a mass water balance for worse case conditions of record. 

(6) An automatically activated standby power source or other means to prevent improperly treated 
wastewater from entering the five-day detention pond shall be provided. 

(7) Requirements for the lining of the five-day detention and irrigation ponds, which may include 
use of impervious natural materials, shall be site -specific. 

(8) In the design of the sprinkler system, the piping shall be a ooparato syst e m, with there shall be 
no direct cross-connections to a potable water supply (includes no spigots on the distnbution 
system). 

(9) The rate of application shall be site -specific. b«* Ret oxcooding 4- a«4 4^4 inchoo/wook (as tjvon 
»3H .0101(g)(8). 

L^^^A 1 ri-i I | |3a ■ » Qj . ■ t-\ «- ■ i i mn I'li'ill | i . ; . ; 1 ■ r U.iti i'.i.m 1 i ; I W 1 t-» »-»-i --i n , 1 thru a K,\] iff- nn/ir 1 1 ^ t It fi il'iilw QgLflmna 

i iu I i il\j mile t7T jui u ruig -Ji iiirr cvvor i_'i». i *i v. j lu i i . o w i_< . l ii ■ kxi itj rxxcq i ikj i_ii j i_'i ii^i iu ci iu unn i \^' l '\.titt it, 

ef- the course. 

(10) (444 There shall be a 400 50 foot vegetative buffer zone between the edge of spray influence and 
the nearest dwelling. 

(11) (44) Signs shall be posted at the proshop stating that the course is irrigated with treated 
wastewater. 

(12) (44} There shall be a certified operator of a class equivalent to the class plant on call 24 
hours/day. 

(1) Wastewater Flow Rates: 

(1) In determining the volume of sewage from dwelling units, the flow rate shall be 120 gallons per 
day per bedroom. The minimum volume of sewage from each dwelling unit shall be 240 gallons 
per day and each additional bedroom above two bedrooms will increase the volume by 120 
gallons per day. Each bedroom or any other room or addition that can reasonably by be ex- 
pected to function as a bedroom shall be considered a bedroom for design purposes. When the 
occupancy of a dwelling unit exceeds two persons per bedroom, the volume of sewage shall be 
determined by the maximum occupancy at a rate of 60 gallons per person per day. 

(2) The following table shall be used to determine the minimum allowable design daily flow of 
wastewater faculties. Design flow rates for establishments not identified below shall be deter- 
mined using available flow data, water-using fixtures, occupancy or operation patterns, and other 
measured data. 

Type of Establishments Daily Flow 

For Design 



7:5 NORTH CAROLINA REGISTER June I, 1992 441 



PROPOSED RULES 



Airports, also RR Stations, bus terminals. 

(not including food service facilities) 
Barber Shops 

Bars, Cocktail Lounges (not including food services) 
Beauty Shops 
Bowling Alleys 

Businesses (other than those listed in this table) 
Camps 

Construction or work camps 

Summer camps 

Camp grounds Without water and sewer hookups 
Travel trailer/recreational vehicle park with water and sewer 

hookup 
Churches (not including food service, day care and camps) 
Country Clubs - Resident Members 

Nonresident Members 
Day Care Facilities 
Factories (exclusive of industrial wastes) — per shift 

Add for showers — per shift 
Food Service Facilities Restaurants 

(including fast food) 



24-hour Restaurants 

Single-Service (exclusive of fast food) 

Food Stands 

(1) Per 100 square feet of total floor space 

(2) Add per employee 
Hospitals 

Laundries (self-service) 
Marinas 

With bathhouse 
Meat Markets 

( 1 ) Per 1 00 square feet of total floor space 

(2) Add per employee 
Motels/ Hotel 

with cooking facilities in room 
Nursing/Rest Homes -- With laundry 

Without laundry 
Offices -- per shift 
Residential Care Facilities 

Resort (e.g. condominiums, apartments, motels, hotels) 
Restaurants 



Schools 

Day Schools 
With cafeteria, gym, and showers 
With cafeteria only 
With neither cafeteria nor showers 
Boarding 
Service Stations 

Stadiums, Auditoriums, Theaters, Drive-ins 



5 gal/passenger 
50 gal/chair 
20 gal /seat 

125 gal booth or bowl 
50 gal/lane 
25 gal/employee 

60 gal/person 
60 gal/person 
100 gal/campsite 

120 gal/campsite 
3 gal/ seat 
60 gal person 
20 gal, person 
15 gal/person 
25 gal/person 
10 gal/person 

40 gal/seat or 



of 



40 gal/ 15 ft 2 
dining area, 
whichever 
is greater 
50 gal/seat 
25 gal/ seat 



50 gal 

25 gal 
300 gal/bed 
500 gal machine 

10 gal, boat slip 

30 gal/boat slip 

50 gal 

25 gal 

120 gal/ room 
175 gal/room 
120 gal/bed 

60 gal/bed 

25 gal/person 

60 gal/person 
200 gal/room 

40 gal/seat or 

40 gal/ 15 ft 2 of 

dining area 

(whichever 

is greater) 



1 5 gal/student 
12 gal/student 
10 gal; student 
60 gal person 
250 gal/water closet 
or urinal 
5 gal/seat or space 



442 



7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



Stores, shopping centers and malls — Note: if 

food service is included, add 40 gal/ seat 120 gal/ 1000 ft 2 

Swimming Pools and Bathhouses 10 gal/person 

(3) An adjusted daily sewage flow may be granted upon a showing that a sewage system is adequate 
to meet actual daily water consumption from a facility included in Subparagraph (1) or (2) of 
this Paragraph. Documented, representative data from that facility or a comparable facility shall 
be submitted, consisting of at least 12 consecutive monthly total water consumption readings 
and daily total water consumption readings for at least 30 consecutive days of water use. The 
daily readings shall be taken during a projected peak sewage flow month. The adjusted design 
daily sewage flow shall be determined by taking the numerical average of the daily readings that 
fall within the upper 10 percent of the daily readings when ranked in descending order. 
(m) For Treatment and Disposal of Soil Containing Petroleum Products: 

(1) Land farming of Soils Containing Petroleum Products at Minimum Rates. Petroleum con- 
taminated soils shall be incorporated into the native soils of the receiver site immediately upon 
application. Liming, fertilization, and aeration of the soils mixture shall be optional, unless 
otherwise required by the Division. Subsequent application of petroleum contaminated soils 
onto the same receiver site shall not occur for at least 18 months from the date of the most recent 
application of petroleum contaminated soils and shall cause the receiver site to be reclassified 
as a "dedicated remediation site" unless the permittee or applicant can demonstrate, through soil 
sampling and contaminant analytical procedures approved by the Department, that the petro- 
leum contaminant level in the upper eight inches of the receiver site soils is below analytical 
detection levels; 

(2) Landfarming of Soil Containing Petroleum Products at Conventional Rates. Landfarming of 
soils containing petroleum product at an application thickness greater than one inch shall require 
fertilization, liming, and aeration of the native soils and petroleum contaminated soils mixture 
as approved by the Division. Application thickness shall be based upon the nature of the re- 
ceiver site soils, depth to the seasonal high water table, the intended cover crop, and the source 
of contamination, in accordance with procedures approved by the Division. Operation of the 
landfarming program shall not result in contravention of classified groundwater or surface water 
quality standards. Subsequent application of petroleum contaminated soils onto the same re- 
ceiver site shall not occur for at least 18 months from the date of the most recent application 
of petroleum contaminated soils and shall cause the receiver site to be reclassified as a "dedicated 
disposal site" unless the permittee or applicant can demonstrate, through soil sampling and 
contaminant analytical procedures approved by the Department, that the petroleum contam- 
inant level in the upper eight inches of the receiver site soils is below analytical detection levels; 

(3) Containment and Treatment of Soil Containing Petroleum Products: 

(A) A containment structure designed to bioremediate or volatilize soil containing petroleum 
products shall be constructed of either a synthetic liner of at least 30 mils thickness or of a one 
foot thick liner of natural material, compacted to at least 95 percent standard proctor dry density 
and with a permeability of less than J_ x 10 cm sec. 

(B) The bottom of the containment structure shall be at least three feet above the seasonal high 
water table or bedrock. 

(C) A leachate collection system must be installed in order to prevent runoff from the petroleum 
contaminated soils within the containment structure, or steps taken to avoid accumulation of 
stormvvater within the containment structure. 

(4) Disposal of Petroleum Contaminated Soils at Dedicated Sites. Subsequent applications of pe- 
troleum contaminated soils at dedicated sites shall not recur until such time as it can be dem- 
onstrated, by computer modeling or predictive calculations, that additional applications of 
contaminated soils will not result in the contravention of any applicable environmental stand- 
ards. Disposal of petroleum contaminated soils at dedicated sites shall conform to procedures 
established bv the Division. 

(n) For Systems Utilizing Infiltration Galleries: 

(1) An infiltration gallery shall be designed such that its largest surface dimension is greater than its 
depth and no vertical piping shall be installed within the trench. 

(2) An infiltration gallery shall be designed such that discharges from the infiltration gallery which 
reach the water table must be within the zone of influence of any on-site groundwater recovery 
system, and must not cause or contribute to the migration of contaminants into previously un- 



7:5 NORTH CAROLINA REGISTER June 1, 1992 443 



PROPOSED RULES 



contaminated areas. Predictive modeling shall be used to estimate the zone of influence, infil- 
tration rate, groundwater movement and flow direction, 
(o) (-»} Additional requirements: 

(1) distance between water supply wells and waste facilities in accordance with Rule 2C .0107(a) 
of this Chapter or, if a greater area may be impacted, a distance in accordance with the perimeter 
of compliance described in Rul e 3fc .0103(h) Subchapter 2L of this Chapter; 

(2) compliance with the groundwater standards specified in Subchapter 2L of this Chapter; 

(3) where applicable compliance with rules on "coastal waste treatment disposal" found in Section 
.0400 of this Subchapter; and 

(4) For subsurface disposal systems, compliance with rules on subsurface disposal systems found 
in Section mm 8* flats Subchapter. 15A NCAC 18A .1900 as amended through August 1, 1991 
or any later adopted amendments or additions. Copies are available from the Division of En- 
vironmental Health, P.O. Box 29535, Raleigh, North Carolina 27626-0535. 

(p) (-»} Alternative Design Criteria may be approved by the Director. This approval will only be given 
in cases where the applicant can demonstrate that the Alternative Design Criteria will provide the fol- 
lowing: 

(1) Equal or better treatment of the waste; and 

(2) Equal or better protection of the waters of the state; and 

(3) No increased potential for nuisance conditions. 



Statutory Authority G.S. 143-215.1; 143-215.3(a)( 1 )'. 



.0220 CERTIFICATION OF COMPLETION 

Prior to the operation of any sewer system, 
treatment works or disposal system pormitte d for 
which an individual permit has been issued in 
accordance with this Section, a certification must 
be received by the permitting agency from a 
professional engineer certifying that the sewer 
system, treatment works or disposal system has 
been installed in accordance with the approved 
plans and specifications. For facilities with 
phased construction or where there is a need to 
operate certain equipment under actual operating 
conditions prior to certification, additional certif- 
ication may be needed as follow-ups to the ini- 
tial, pre-operation, certification. 

Statutory Authority G.S. 143-215.1. 

.0222 THE WASTEWATER TREATMENT 
WORKS EMERGENCY FUND 

(a) In cases in which water quality standards 
are violated or an environmental health threat 
exists, monies from the Wastewater Treatment 
Works Emergency Maintenance, Operation and 
Repair Fund may be used at the discretion of the 
Director to correct the cause of such conditions. 

(b) In this, the Director shall: 

(1) Ensure the fiscal integrity of the fund; 

(2) Use the fund only as a measure of last re- 
sort to protect water quality or public 
health when all other compliance and 
enforcement procedures have failed; 

(3) Limit the use of the fund to wastewater 
treatment works with design flow capaci- 
ties of less than or equal to one hundred 
thousand gallons per day (100,000 GPD); 



(4) Notify the permittee by certified mail of 
the intention to take emergency corrective 
action and to recoup monies spend; 

(5) Make every effort to recoup fund expend- 
itures, including collection costs, from the 
parties responsible; and 

(6) Coordinate use of the fund with the pro- 
gram of the Public Utilities Commission 
when a permittee is also a regulated util- 
ity. a«4 

{p-f Provide a quarterly accounting &f t&a fund 
to ihe Commission. 



Statutory Authority G.S. 
143-215.3B(c); 143-215.3B{e). 



.0223 



143-215.3(a); 



DEMONSTRATION OF FUTURE 
WASTEWATER TREATMENT 
CAPACITIES 

In order to insure that treatment systems do not 

exceed their hydraulic treatment capacities, no 

permits for sewer line extensions will be issued 

to wastewater treatment systems owned and or 

operated by municipalities, counties, sanitary 

distncts or public utilities unless they meet the 

following requirements: 

( 1) Prior to exceeding 80 percent of the 

wastewater treatment system's permitted 

hydraulic capacity (based on the average of 

the previous two months), the permittee 

must submit an approvable engineering 

evaluation of their future wastewater treat- 



ment needs. This evaluation must outline 
specific plans for system expansion including 
the source(s) of funding lor the expansion. 
If expansion is not proposed, a detailed jus- 



444 



7:5 NORTH CAROLINA REGISTER June I, 1992 



PROPOSED RULES 



tification 
growth 



must be made 
records and 



based on past 
future growth 



projections and /or on specific plans for the 
removal of infiltration inflow. 

(2) Prior to exceeding 90 percent of the 
wastewater treatment systems permitted hy- 
draulic capacity, (based on the average of the 
previous two months) the permittee must 
submit approvable final plans and specifica- 
tions for expansion of the wastewater treat- 
ment system including a construction 
schedule. If expansion is still not proposed, 
a detailed justification must be made based 
on past growth records and future growth 
projections and /or on specific plans for the 
removal of infiltration inflow. 

(3) The Director may on a case by case basis, 
until December 31, 1993, allow permits to 
be issued to facilities that are exceeding the 
80 percent or 90 percent loading rates if the 
additional flow is not projected to result in 
the facility exceeding its permitted hydraulic 
capacity and it is demonstrated to his satis- 
faction that adequate progress is being made 
in developing the needed engineering evalu- 
ations or plans and specifications. 

Statutory Authority G.S. 143-215.3. 

.0224 TREATMENT FACILITY OPERATION 
AND MAINTENANCE 

(a) For facilities permitted under this Section, 
the permittee must designate an Operator in Re- 
sponsible Charge and a back-up operator as re- 
quired by the Water Pollution Control System 
Operators Certification Commission as estab- 
lished in L5A NCAC 8A .0202 as amended 
through May \± 1991 or any later adopted 
amendments or editions of this Rule. Copies of 
this Rule are available from the Division of En- 
vironmental Management, Water Quality Sec- 
tion, Archdale Building, 512 N. Salisbury Street, 
P.O. Box 29535, Raleigh, North Carolina 
27626-0535 at no charge. 

(b) In order to insure the proper operation and 
maintenance of facilities permitted under this 
Section, the Operator in Responsible Charge, or 
a back-up operator when appropriate, must op- 
erate and visit the facility as required by the Wa- 
ter Pollution Control System Operators 
Certification Commission as established in 15A 
NCAC 8A .0202 as amended through May f, 
1991 or any later adopted amendments or edi- 
tions of this Rule. Copies of this Rule are 
available from the Division of Environmental 
Management, Water Quality Section, Archdale 



Building, 512 N. Salisbury Street, P.O. Box 
29535, Raleigh, North Carolina 27626-0535 at 
no charge. 

Statutory Authority G.S. 143-215.3. 

****************** 



1 V otice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR - Division of Envi- 
ronmental Management intends to amend rule(s) 
cited as 15A NCAC 2H .1101, .1103, .1106 - 
.1110. 

1 he proposed effective date of this action is No- 
vember 2, 1992. 

1 he public hearing will be conducted at the fol- 
lowing times, dates and locations: 

June 16, 1992 

7:00 p.m. 

Jenkins Fine Arts Center 

East Carolina University 

Greenville, N.C. 

June 17, 1992 

7:00 p.m. 

Main Room 

Clinton Civic Center 

Clinton, N.C. 

June 22, 1992 

7:00 p.m. 

Auditorium 

Carteret Community College 

Morehead City, N.C. 

June 23, 1992 

1:00 p.m. 

Ground Floor Hearing Room 

Archdale Building 

Raleigh, N.C. 

June 29, 1992 

7:00 p.m. 

Humanities Lecture Hall 

UNC - Asheville 

Ashevitle, N.C. 

June 30, 1992 

1:00p.m. 

Rotary Auditorium 

Mitchell Community College 

Statesville, N.C. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



445 



PROPOSED RULES 



Jxeasons for Proposed Actions: To improve the 
Commission's biological laboratory certification 
rules by adding clarity to several provisions and 
including additional requirements for those found 
out of compliance with the rules. 

(^ omment Procedures: A 11 persons interested in 
this matter are invited to attend the hearings. 
Comments, statements, data and other informa- 
tion may be submitted in writing prior to, during 
or within 30 days after the hearings or may be 
presented orally at the hearings. Oral statements 
may be limited at the discretion of the hearing 
officer. Submittal of written copies of oral state- 
ments is encouraged. For more information about 
the rules, contact Dennis Ramsey or Boyd 
De Vane, Division of Environmental Management, 
P.O. Box 29535. Raleigh, NC 27626-0535, (919) 
733-5083. For copies of the rules, contact Linda 
Jones or Kay Stallings at the same number and 
address. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 

SECTION .1 100 - BIOLOGICAL LABORATORY 
CERTIFICATION 

.1101 PURPOSE 

These Rules set forth the requirements for cer- 
tification of commercial, industrial, and public 
laboratories to perform biological toxicity testing 
and population survey surveys of water and 
wastewater as required for National Pollutant 
Discharge Elimination System (NPDES) permits 
by G.S. 143-215. 3(a)( 10) and Environmental 
Management Commission Rules for Classifica- 
tions and Water Quality Standards Applicable to 
the Surface Waters of North Carolina, found in 
Subchapter 2B of this Chapter, Section .0200, 
and Rules for Surface Water Monitoring, Re- 
porting, found in Subchapter 2B of this Chapter, 
Section .0500. 

Statutory' Authority G.S. 143-215 -3(a)( 1 ); 

143-21 5.3(a) ( 10); 143-215.66. 

.1103 DEFINITIONS 

The following terms as used in this Section shall 
have the assigned meaning: 
(1) Categories are groups of parameters which 
differ by measured test exposure regimes 
(chronic and acute) and, in the case of 
toxicological assay, through the presence or 
absence of vertebrae in the species of test 



organisms used or being a member of the 
plant kingdom. All field population survey 
techniques are contained within one cate- 
gory. 

(2) Certification is a declaration by the Divi- 
sion that personnel, equipment, records, 
quality control procedures, and methodol- 
ogy cited by the applicant are accurate and 
that the applicants' proficiency has been 
considered and found acceptable. 

(3) Commercial Laboratory means any labo- 
ratory, including its employees and agents, 
which is f i oolung to analyse, analyzes, for 
others, wastewater samples for toxicity 
measurements or for their resultant impacts 
on the receiving waters. 

(4) Decertification is the loss of certification. 

(5) Director means the Director of the North 
Carolina Division of Environmental Man- 
agement, or his successor. 

(6) Division means the North Carolina Divi- 
sion of Environmental Management, or its 
successor. 

(7) Evaluation samples are samples submitted 
by the State Laboratory to the commercial, 
municipal, industrial, or public laboratory 
as an unknown toxicant for measurement 
of toxicity or as an unknown set of preserved 
organisms for identification to specified lev- 
els of taxonomic classification. 

(8) Falsified data or information means data 
or information which has, for whatever rea- 
son, been knowingly mad.£ false or untrue 

omi ssion, substi- 



bv alteration, fabrication. 



tution. or mischaracterizati 



(9) Inaccurate data or other information 
means data or information that is in any way 
incorrect, mistaken or not accurate. 

(10) (£) Industrial Laboratory means a labora- 
tory, including its employees and agents, 
operated by an industry to analyze samples 
from its wastewater treatment plants for 
toxicity measurements or resultant impacts 
to receiving waters. 

(11) (9) Parameters are subgroups of categories. 
Parameters are unique and separate if they 
are in separate categories or are performed 
using different species of test organisms, fe 
t4** ease &f biological survey, For the cate- 
gory', Aquatic Population Survey, separate 
parameters are to be considered fish, 
macroinvertebrates, algae, aquatic 
macrophytes, and zooplankton. 

( 12) (444) Public Laboratory means a laboratory, 
including its employees and agents, operated 
by a municipality, county, water and sewer 
authority, sanitary district, metropolitan 
sewerage district, or state or federal installa- 



446 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



tion or any other governmental unit to ana- 
lyze samples from its wastewater treatment 
plant(s) for toxicity measurements or result- 
ant impacts to receiving waters. 

(13) (444 Recertification is reaffirmation of cer- 
tification. 

(14) (44) Split samples are samples from either 
a surface water effluent discharge, surface 
water, or aquatic biological population sur- 
vey which are segregated at the point of 
sampling or in the case of field survey, col- 
lected independently and then analyzed sep- 
arately by both the State Laboratory and the 
commercial, public or industrial laboratory. 

(15) (444 State laboratory means the Biological 
Sorvicoo Unit Environmental Sciences 
Branch of the Water Quality Section of the 
North Carolina Division of Environmental 
Management or its successor. 

(16) (4-44 Toxicant - Any specific chemical or 
compound or mixture of chemicals or com- 
pounds regulated within an NPDES permit 
and/or defined as a toxic substance in Rule 
.0202 of Subchapter 2B. e( these Rogu 
lations. 

Statutory Authority G.S. l43-215.3(a)( 1 ); 
143-215.3(a)(l0); 143-2 IS. 66. 

.1106 DECERTIFICATION 

(a) Laboratory Docortification onc e cortifiod, a 
A laboratory may forfeit it* certification may be 
revoked for all categories by- failing te^ for: 

(1) Maintain Failing to maintain the facilities, 
records, personnel, equipment or quality 
assurance program as set forth in the ap- 
plication or these Rules; or 

(2) Submit truthful and- accurato data roports; 
©f Submitting inaccurate or falsified data 
reports or other information; or 

(3) Ray Failing to pay required fees by the 
date due. 

(b) Catogorical Docortification onc e certifi e d, a 
A laboratory may be required te- forfeit its certif- 
ication may be revoked for a category by fulling 
for failure to: 

(1) Obtain acceptable results on two consec- 
utive evaluation sample submittals from 
the Division. Acceptable results on per- 
formance evaluation samples are those 
that vary by less than two standard devi- 
ations of the value established by the Di- 
vision. The state laboratory may apply 
specific variance or statistical limits or 
performance criteria on performance eval- 
uation samples or split samples for a par- 
ticular testing procedure, including control 
population effects and taxonomic identifi- 



(2) 



(3) 

(4) 
(5) 



(6) 



(7) 



(8) 

(9) 



(10) 



cation, as published in the Certification 
Criteria/Procedures Document; or 

Obtain acceptable results as set out in 
Paragraph (1) of this Rule on two con- 
secutive split samples that have also been 
analyzed by the Division; or 
Submit a split sample to the Division as 
requested; or 

Use approved testing techniques; or 
Report to the state laboratory equipment 
changes that would affect its ability to 
perform a test category within 30 days of 
such change; or 

Report to the state laboratory analysis of 
performance evaluation samples submit- 
ted by the Division within required time 
of completion; or 

Maintain records and perform quality 
controls as set forth by these Rules and 
the Division for a particular category; or 

Maintain equipment required for any 
certified parameter; or 
Implement and maintain Quality Control 
Programs approved in conjunction with 
certification; or 
Maintain a qualified staff. 
(c) Decertification Requirements: 
(1) A laboratory is not to analyze samples for 
parameters in decertified categories for 
programs described in Rule .1102 of this 
Section. 

A decertified commercial laboratory must 
mako arrangomonto t» supply analysis 
through a c e rtified laboratory during any 
docortification periods ©f notify clionto 

f Fi -I f fcl^A ' 1 1 \ ' l I \ r I r ■^ f '" t-i nt 1^^ , i i ■ m > 1 i , i , 1 I Vifi 

notify any clients affected by the decertif- 
ication of such and supply the state labo- 
ratory with a list of those clients affected 
and written certification that those clients 
have been notified. Should the decertified 
laboratory arrange for a certified labora- 
tory to perform analyses during the period 
of decertification, the decertified labora- 
tory must supply the Division with the 
name of the replacement laboratory and 
the client (s) involved. The certified labo- 
ratory's name which performs analyses 
must appear on all data submitted to the 
Division. 

Statutory Authority G.S. 143-21 5.3(a) ( I); 
143-215.3(a)(10); 143-215.66. 

.1107 RECERTIFICATION 

(a) A laboratory decertified for any reason, 
other than the submittal of falsified data reports 
or other information, may be recertified alter 30 



(2) 



7:5 NORTH CAROLINA REGISTER June I, 1992 



447 



PROPOSED RULES 



days, upon satisfactory demonstration to the 
state laboratory that all deficiencies have been 
corrected. 

(b) In the case of a laboratory decertified for 
submitting falsified data reports or other infor- 
mation, recertrfication shall not occur until at 
least 12 months after the decertification and then 
only at such time as the laboratory has satisfac- 
torily demonstrated to the Director that the 
standards for initial certification have been met. 



(c) fb} Should decertification occur due to either 
failure of performance samples or split samples, 
a written request must be made to the state lab- 
oratory requesting evaluations similar to the pa- 
rameters for which the laboratory was decertified. 
Two consecutive samples must be successfully 
evaluated to achieve recertification. The first of 
these samples for recertification will be submitted 
or arranged by the Division no later than 30 days 
after receipt of the written request. The second 
will be submitted or arranged no later than 30 
days after the first. 

Statutory Authority G.S. 143-21 5.3(a) ( 1 ); 
143-21 5. 3 (a) (10); 143-215.66. 

.1108 RECIPROCITY 

(a) Laboratories certified by other states or 
federal programs may be given reciprocal certif- 
ication where such programs meet the require- 
ments of these Rules. In requesting certification 
through reciprocity, laboratories shall include 
with the application a copy of their certification 
and the rules of the original certifying agency. 

(b) Laboratories certified on the basis of pro- 
gram equivalency shall pay all fees specified by 
these regulations. Rules. 

Statutory Authority G.S. 143-21 5.3(a) (1 ); 
143-215. 3(a) (10); 143-215.66. 

.1109 ADMINISTRATION 

The Director of the Division of Environmental 
Management, Department of Environment. 
Health, and Natural Resources, sh4 Community 
Development, or his delegate, is authorised de- 
legated authority to issue certification, to reject 
applications for certification, to renew certif- 
ication, to issue recertification, to issue decertif- 
ication, and to issue reciprocity certification. 

Statutory Authority G.S. 143-215.3(a)(l); 
143-215. 3(a) (10); 143-215.66. 

.1110 IMPLEMENTATION 

(a) Each laboratory requesting state certif- 
ication or certification renewal or recertification 
shall submit an application in duplicate to the 



Division. Each application will be reviewed to 
determine the adequacy of personnel, equipment, 
records, quality control procedures and method- 
ology. After receiving a completed application 
and prior to issuing certification, a representative 
of the Division may visit each laboratory to ver- 
ify the information in the application and the 
adequacy of the laboratory. 

(b) Analytical methods, sample preservation, 
sample containers and sample holding times shall 
conform to the methodologies specified in the 
Certification Criteria Procedures Document. 
Deviations from these methods are acceptable 
only upon prior written approval from the state 
laboratory. 

(c) In order to maintain certification, each lab- 
oratory will demonstrate satisfactory perform- 
ance on evaluation samples submitted by the 
Division. These will be required no more than 
three times annually of certified laboratories for 
each parameter certified. 

(d) In order to receive and maintain certif- 
ication the following minimum criteria must be 
met: 

(1) The supervisor of an aquatic toxicology 
or biological survey laboratory must have 
a minimum of a B.S. degree from an ac- 
credited college or university in a biolog- 
ical science or closely related science 
curriculum and at least three years of cu- 
mulative laboratory experience in aquatic 
toxicity testing or aquatic biological sur- 
vey, as appropriate, or a M.S. degree in a 
biological or closely related science and at 
least one year of cumulative laboratory 
experience in aquatic toxicity testing or 
aquatic biological survey, as appropriate. 

(2) All laboratory supervisors are subject to 
review by the Division. One person may 
serve as supervisor of no more than two 
laboratories. The supervisor is to pro- 
vide direct supervision and evaluation of 
all technical personnel and is responsible 
for the proper performance and reporting 
of all analyses. Upon absence, the super- 
visor shall arrange for a suitable substitute 
capable of insuring the proper perform- 
ance of all laboratory procedures. Exist- 
ing laboratory supervisors who do not 
meet the minimum requirements may be 
accepted after review by the Division if 
they meet all other certification require- 
ments and previous performance is 
deemed adequate. 

(3) AH laboratories subject to theco rules muot 

submit a» application, including fee*r fof 
certification within 30 days &f the effective 
date &£ th e s e rul e s. A laboratory which 



448 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



ka* submitted a- comploto application wiH 
be doomod te be m compliance witb thoso 
rules *h4 may conduct biological testing 
a«4 submit rosults p e nding action bf tke 
Division ©» tfee application. All applica- 
tions and fees are due 45 days prior to the 
requested certification date. Problems 
identified with the applying laboratory 
and resolution of these problems may ex- 
tend the requested 45 day period from 
application to certification. 
(4) Aft e r a si* month implementation period 
fof thoso sew rules, aH applications a«4 

4Vu-*f n «-/-\ Hun .1 S dflllt * "■ * ' ' ' r * n t 1 1 - i n 'i I II llllf I \i \ 
I^Wct HTTT UUV I _> OnTTJ UllUI CTT L1JTV 1 »-^-f UUJIUU 

cortification dato. 

(4) ^ Each laboratory shall develop and 
maintain a document outlining quality 
control procedures for all parameters in 
their certification and dissolved oxygen, 
temperature, and pH. All aquatic 
toxicology laboratories must also develop 
and maintain a document outlining qual- 
ity control procedures for total hardness 
and total residual chlorine. These docu- 
ments are to be included with submittal 
of the application. 

(5) (6) Each laboratory certified for the cate- 

gory of Aquatic Population Survey and 
Analysis shall develop and maintain a 
document outlining quality control pro- 
cedures for taxonomic identifications and 
life-stage determinations. 

(6) £7) Supporting records shall be maintained 

as evidence that these practices are being 
effectively carried out and shall be avail- 
able to the state laboratory upon request. 

(7) £&) The quality control program is to be 

approved in conjunction with &e certif- 
ication by the Division. Director. 

Statutory Authority G.S. M3-215.3(a)( 1 ); 
143-2) '5. 3 (a) (10); 143-215.66. 

****************** 



Room 386, 5/2 N. Salisbury Street, Raleigh, NC 
27604-1188. 

Tveason for Proposed Action: To reduce the 
speed of boats in the vicinity of a children's camp. 



No 



otice is hereby given in accordance with G.S. 
150B-2/.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule(s) 
cited as 15 A NCAC I OF .0318. 

I he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 16, 1992 at the Archdale Building, 



Cc 



■ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from June 
1 , 1992, to July 1 , 1992. Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER 10F - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0318 WARREN COUNTY 

(a) Regulated Area. This Rule applies only to 
that portion of Lake Gaston which lies within the 
boundaries of Warren County. 

(b) Speed Limit Near Ramps. No person shall 
operate a vessel at greater than no-wake speed 
within 50 yards of any public boat launching 
ramp while on the waters of Gaston Lake in 
Warren County. 

(c) Speed Limit in Mooring Areas. No person 
shall operate a vessel at greater than no-wake 
speed while within a marked mooring area es- 
tablished with the approval of the Executive Di- 
rector, or his representative, on the waters of 
Gaston Lake in Warren County. 

(d) Restricted Swimming Areas. No person 
operating or responsible for the operation of a 
vessel shall permit it to enter any marked public 
swimming area established with the approval of 
the Executive Director, or his representative, on 
the waters of Gaston Lake in Warren County. 

(e) Speed Limit in Specific Zones. No person 
shall operate a vessel at greater than no -wake 
speed within 50 yards of the following marked 
zone located on the regulated area described in 
Paragraph (a) of this Rule: the entrance of the 
Camp Willow Run Canoe, Sail Cove. 

(f) (e^ Placement and Maintenance of Markers. 
The Board of Commissioners of Warren County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps 
of Engineers. With regard to marking Gaston 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



449 



PROPOSED RULES 



Lake, all of the supplementary standards listed in 
Rule .0301(g) of this Section shall apply. 

Statutory Authority G.S. 75.4-3; 75A-15. 

TITLE 24 - INDEPENDENT AGENCIES 

lyotice is hereby given in accordance with G.S. 
150B-2I .2 that the North Carolina Housing Fi- 
nance Agency intends to adopt rule(s) cited as 24 
NCAC 10 .0101 - .0102 and .0201 - .0203. 

1 he proposed effective date of this action is 
September 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 16, 1992 at the North Carolina 
Housing Finance Agency, 3300 Drake Circle, 
Suite 200, Raleigh, NC 27607-3300. 

JXeason for Proposed Action: To implement 
homelessness prevention demonstration program 
required under Chapter 582, House Bill 182. 

(^ omtnent Procedures: Written comments must 
be submitted to the A PA Coordinator by July 1, 
1992. Oral comments may be presented at the 
hearing. 

CHAPTER 1 -N.C. HOUSING FINANCE AGENCY 

SUBCHAPTER IO - HOMELESSNESS 
PREVENTION DEMONSTRATION PROGRAM 

SECTION .0100 - GENERAL INFORMATION 

.0101 PURPOSE 

The purpose of the Homelessness Prevention 
Demonstration Program is to establish a revolv- 
ing loan fund for security and utility deposits to 
enable people in shelters and transitional housing 
projects to move into permanent housing. The 
revolving loan fund will be initially capitalized 
by funds available jn the agency's Multifamilv 
Rental Assistance Fund. 



Statutory Authority G.S. 
582, H.B. 182. 



I22A-5; 122A-5.1: c. 



.0102 ELIGIBILITY 

(a) Eligible borrowers under the program will 
be; 

( 1) Without permanent or long term housing: 

(2) Currently residing in a homeless shelter. 



homeless by a public or private social 
service agency working with the homeless; 

(3) Able to pay rent or otherwise maintain 
permanent housing as evidenced by em- 
ployment. Aid to Families with Depend- 
ent Children, Supplemental Security 
Income, rent subsidy vouchers or certif- 
icates or other benefits; and 

(4) Without sufficient cash assets to make re- 
quired security and utility deposits. 

(b) F liable applicants under the program are 
public and private social service organizations 
including, but not limited to, transitional housing 
facilities, homeless shelters and other organiza- 
tions working with the homeless. 



transitional housing project or other such 
facility or have been determined to be 



Statutory Authority G.S. 122A-5; 122 A- 5.1; c. 
582, H.B. 182. 

SECTION .0200 - ADMINISTRATION 

.0201 APPLICATION PROCEDURES 

(a) A request for proposals will be published 
in appropriate newspapers and other forms of 
public notice will be used to solicit applications 
from eligible organizations. 

(b) F liable borrowers will apply directly to the 
organizations selected for funding who will proc- 
ess the loans on behalf of the agency. 

Statutory Authority G.S. 122A-5; 122A-5.1; c. 
582., H.B. 182. 



.0202 SELECTION PROCEDLRES 

(a) Organizations will be selected for funding 
bv the b iard of directors of the agency based on 
geographical distribution and other selection cri- 
teria identified in the request for proposals. 

(b) Individual borrowers will be selected bv the 
participating organizations. 

Statutory Authority G.S. 122A-5; 122.4-5.1; c. 
582, H.B. 182. 

.0203 ADMINISTRATION 

(a) The agency will enter into a funding agree- 
ment with each organization selected for funding. 
The agreement will include, but not be limited to: 

( 1) The amount of funding; 

(2) The obligations of the recipient: 

(3) The terms of the disbursement of funds 
from the Multifamilv Rental Assistance 
Fund; and 

(4) Provisions for the repayment of loans to 
the Multifamilv Rental Assistance Fund. 

(b) The- a.gencv will periodically review the 
performance of recipient organizations according 
to the funding agreement. TTiis will be done at 



450 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



PROPOSED RULES 



least annually and may be done on a more fre- 
quent basis. 

(c) Recipient organizations will submit such 
periodic reports as required by the agency to fa- 
cilitate the monitoring process. The reports will 
be described in .greater detail in the program 
funding documents. The reports will include, 
but not be limited to, progress on the accom- 
plishment of program objectives including infor- 
mation on program beneficiaries and housing 
units obtained and annual audited financial 
statements. 



(d) If the agency finds there has been substan- 
tial nonperformance under the funding agreement 
and the situation is not corrected within a period 
of time, as established in the funding agreement 
and after notice to the recipient of such finding, 
the agency may terminate or modify the agree- 
ment after written notice is provided. 



Statutory Authority G.S. 
582, H.B. 182. 



122A-5; 122A-5.I; c. 



7:5 NORTH CAROLINA REGISTER June /, 1992 



451 



LIST OF RULES CODIFIED 



1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


Key: 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Eff. Date 


= Date rule becomes effective 


Temp. Expires 


= Rule was filed as a temporary rule and expires on this date 



NORTH CAROLINA ADMINISTRATIVE CODE 
APRIL 1992 



TITLE DEPARTMENT 



2 


Agriculture 


4 


Economic and Community 




Development 


10 


Human Resources 


11 


Insurance 


13 


Labor 



TITLE DEPARTMENT 

15A Environment, Health, 

and Natural Resources 

16 Education 

1 7 Revenue 

19A Transportation 

21 Occupational Licensing 

58 - Real Estate Commission 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
Expires 


2 \CAC 34 .1201 -.1203 


• 








05 01 92 




.1204 


• 






• 


05 01 92 




.1205 - .1206 


• 








05 01 92 




43L .0202 




• 






05 01 92 




48A .0239 - .0240 


• 






• 


05 01 92 




.0241 


• 








05 01 92 




.0601 










05 01 92 




.0608 










05 01 92 




.0611 








• 


05 01 92 




52 B .0204 








• 


05 01 92 




.0207 








• 


05 01 92 




.0209 










05 01 92 




.0212 










05 01 92 




52E .0103 


• 








05 01 92 




4 NCAC 3C .0801 










05 01 92 




.0802 - .0803 








• 


05 01 92 





452 



7:5 NORTH CAROLINA REGISTER June I, 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
Expires 


4 NCAC 3C .0804 




• 






05 01 92 




.0807 


• 






• 


05 01 92 




.0901 








• 


05,01 92 




.0903 








• 


05 01 92 




.1001 










05/01 92 




.1103 - .1105 


• 








05,01 92 




.1501 - .1502 










05,01 92 




.1601 










05 01 92 




3D .0302 








• 


05 01 92 




.0303 










05/01 92 




.0304 








• 


05,01 92 




3H .0001 






• 




05 01 92 




.0002 - .0003 


• 






• 


05 01 92 




16F .0001 








• 


05,11 92 




.0002 • .0003 










05,11 92 




.0006 - .0007 










05 11 92 




.0008 - .0009 








• 


05 11 92 




.0010 










05/11 92 




.0011 








• 


05/11 92 




.0012 










05,11 92 




19L .0103 








• 


05,01 92 




.0401 










05 01 92 




.0404 










05 01 92 




.0701 - .0702 






• 




05 01 92 




.0705 






• 




05,01 92 




.0904 










05 01 92 




.1202 










05,01 92 




.1301 








• 


05 01 92 




20 A .0001 










05 01 92 




.0003 










05 01 92 




20C .0001 










05 01 92 




10 NCAC 3J .3401 








• 


06 01 92 




.3403 










06 01 92 




.3405 






• 




06/01 92 




.3416 










06 01 92 




.3418 








• 


06 01 92 




3L .0111 - .0116 






• 




07 01 92 




.0205 - .0210 






• 




07 01 92 





7:5 NORTH CAROLINA REGISTER June 1, 1992 



453 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Eir. 

Date 


Temp. 
Expires 


10 NCAC 3L .0305 - .0314 






• 




07 01 92 




.0418 - .0421 






• 




07 01 92 




.0504 - .0506 






• 




07 01 92 




.0604 - .0605 






• 




07 01 92 




.0902 - .0907 








• 


07.01 92 




.1001 








• 


07 01 92 




.1002 










07 01 92 




.1003 - .1006 








• 


07 01 92 




.1007 










07 01 92 




.1101 .1102 








• 


07 01 92 




.1103 










07 01 92 




.1104 








• 


07 01 92 




.1105 - .1106 










07 01 92 




.1107 - .1108 








• 


07 01 92 




.1109 










07 01 92 




.1111 










07 01 92 




.1201 










07 01 92 




.1301 - .1303 










07 01 92 




.1401 - .1402 








• 


07 01 92 




26B .0121 








• 


06 01 92 




26H .0206 








• 


05 01 92 




39 D .0401 










05 01 92 




.0403 










05 01 92 




411 .0304 










06 01 92 




.0408 










06 01 92 




.0410 










06 01 92 




.0411 


• 








06 01 92 




42B .1206 










05 01 92 




.1207 








• 


05 01 92 




42C .2302 








• 


05 01 92 




.3103 - .3104 










05 01 92 




46H .0203 - .0204 










07 01 92 




.0205 






• 




0" 01 92 




.0301 










07 01 92 




.0303 






• 




07 01 92 




.0304 - .0306 










07 01 92 




50A .0604 










05 01 92 




11 NCAC 12 .0548 










05 01 92 





454 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


13 NCAC 15 .0201 










05 01 92 




.0202 








• 


05 01 92 




.0203 - .0206 










0501 92 




.0302 - .0303 










05 01 92 




.0403 - .0404 










05 01 92 




.0413 - .0414 










05 01 92 




.0420 










05 01 92 




.0424 










05 01 92 




.0429 


• 






• 


05 01 92 




15A NCAC 2B .0312 








• 


06 01 92 




3P .0003 










050192 




5B .0005 










05 01 92 




IOC .0206 










05 01 92 




.0212 










05 01 92 




.0302 










05 01,92 




.0305 










05 01 92 




.0401 - .0402 










05 01,92 




.0407 










05 01 92 




10D .0004 










05 01 92 




11 .0104 










05 01 92 




.0111 










05 01 92 




.0203 










05 01 92 




.0205 










05 01 92 




.0301 










05 01 92 




.0307 










05 01 92 




.0316 - .0317 










05 01 92 




.0338 - .0339 










05 01 92 




.0347 






• 




05 01,92 




.0350 










05 01 92 




.0352 - .0355 


• 








05 01 92 




.0402 - .0403 










05 01 92 




.0411 










05 01 92 




.0417 




* 






05 01 92 




.0420 










05 01 92 




.0503 










05 01 92 




.0602 










05 01 92 




.0605 










05 01 92 




.0608 










05 0192 





7:5 NORTH CAROLINA REGISTER June 1, 1992 



455 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
Expires 


15A NCAC 11 .0703 










05 01 92 




.0910 










05 01 92 




.1002 








• 


05 01 92 




.1007 - .1008 










05 01 92 




.1102 








• 


05 01 92 




.1202 








• 


05 01 92 




.1206 








• 


05 01 92 




.1229 










05 01 92 




.1324 








• 


05 01 92 




.1403 










05 01 92 




.1405 








• 


05 01 92 




.1418 - .1419 










05 01 92 




19A .0301 










05 01 92 




16 NCAC 6D .0210 








• 


06 01 92 




17 NCAC 9H .0208 • .0209 


• 








05 01 92 




.0305 - .0306 


• 








05 01 92 




19A NCAC 2B .0165 




• 






05 01 92 


10 31 92 


21 NCAC 58A .0601 




• 




• 


05 01 92 




.0610 




• 






05 01 92 




.0612 


• 








05 01 92 




.0613 


• 






• 


05 01 92 




.0902 




• 






05 01 92 




58 C .0501 




• 






05 01 92 




58D .0202 




• 




• 


05 01 92 




.0601 - .0602 


• 






• 


05 01 92 




.0603 - .0606 


• 








05 01 92 




.0701 


• 








05 01 92 





456 



7:5 NORTH CAROLINA REGISTER June I, 1992 



RRC OBJECTIONS 



Th 



he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



AGRICULTURE 

Plant Industry 

2 NCAC 48 A .0239 - Permit to Sell Bees 

Agency Revised Rule 
2 NCAC 48 A .0240 - Form BS-11 

Agency Revised Rule 
2 NCAC 48 A .061 I - Program Participation and Payment of Fees 

Agency Revised Rule 
2 NCAC48E .0101 - Definitions 

Agency Revised Rule 

Agency Responded 

Agency Withdrew Rule 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

14A NCAC 9H .0304 - Notifying Registered Owner 
No Response from Agency 
Agency Withdrew Rule 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission 

4 NCAC 3C .0807 - Subsidiary Investment Approval 

Agency Revised Rule 
4 NCAC 3C .0901 - Books and Records 

Agency Revised Rule 
4 NCAC 3C .0903 - Retention: Reproduction Disposition of Bank Records 

Agency Revised Rule 
4 NCAC 3D .0302 - Administration of Fiduciary Powers 

Agency Revised Rule 
4 NCAC 3H .0102 - Regional Bank Holding Company Acquisitions 

Agency Revised Rule 

Community Assistance 

4 NCAC 19L .0103 - Definitions 

Agency Revised Rule 
4 NCAC 19L .0403 - Size and Use of Grants Made to Recipients 
4 NCAC 19L .0407 - General Application Requirements 
4 NCAC 191 .1301 - Definition 

Agency Revised_Rule 

Credit Union Division 

4 NCAC6C .0407 - Business Loans 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
No Action 



04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
10/17/91 
10/17/91 
12/19/91 
02/20/92 



RRC Objection 12/19/91 

No Action 01/24/92 

02/20/92 



RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 


RRC Objection 
Obj. Removed 


04/16/92 

04/16/92 


RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 


RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 


RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 


RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 


RRC Objection 
RRC Objection 
RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 
04/16/92 
04/16/92 


RRC Objection 


01/24/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



457 



RRC OBJECTIONS 



Agency Revised Rule 
Savings Institutions Division: Savings Institutions Commission 

4 NCAC 16F .0001 - Permitted Activities 

Agency Revised Rule 
4 NCAC I6F .0008 - Finance Subsidiary Transactions With Parent 

Agency Revised Rule 
4 NCAC 16F .0009 - Issuance of Securities by Finance Subsidiaries 

Agency Revised Rule 
4 NCAC I6F .001 J - Holding Company Subsidiaries; Finance Subsidiaries 

Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAII 
ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0402 - Criteria for Grant or Denial of Permit Applications 
ISA NCAC 7M .0201 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7M .0202 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7M .0303 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
15A NCAC 7M .0403 - Policy Statements 

Agency Responded 

Agency Responded 

Agency Revised Rule 
ISA NCAC 7M .0901 - Declaration of General Policy 

Agency Responded 

Agency Responded 



Obj. Removed 02/20/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04116:92 
04/16192 
04I16\92 
04/16:92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 



RRC Objection 


01/24,92 


No Action 


01/24/92 




01/24/92 


Eff 


03/01/92 


RRC Objection 


02/ 20 1 92 




03,19/92 


Eff. 


03,31 92 


RRC Objection 


03/19/92 




03/19/92 


Eff 


04/01:92 


RRC Objection 


02/20/92 




03/19:92 


Eff 


03/31/92 


RRC Objection 


03/1992 




03/19/92 


Eff. 


04/01/92 


RRC Objection 


10/17:91 


RRC Objection 


10/17/91 


No Action 


12 19 91 


No Action 


01/24/92 




01/24/92 


Eff 


03/01/92 


RRC Objection 


10:17,91 


No Action 


12/19/91 


No Action 


01/24:92 




01/24/92 


Eff. 


03/01/92 


RRC Objection 


10117/91 


No Action 


12,19,91 


No Action 


01/24,92 




01/24/92 


Eff. 


03/01/92 


RRC Objection 


10/17:91 


No Action 


12/19,91 


No Action 


01/24:92 


Obj. Removed 


02/20 92 


RRC Objection 


10 17 91 


No Action 


121 1919 1 


No Action 


OF 24:92 



45S 



7:5 NORTH CAROLINA REGISTER June I, 1992 



RRC OBJECTIONS 



Rule Returned to Agency 
Agency Filed Rule with OAH 

Environmental Management 

ISA NCAC 2E .0/07 - Delegation 
Agency Revised Rule 

Governor's Waste Management Board 

ISA NCAC MB .0002 - Definitions 
Agency Revised Rule 

Radiation Protection 

ISA NCAC II .0338 - Specific Terms and Conditions of Licenses 

Agency Revised Rule 
ISA NCAC II .0339 - Expiration of Licenses 

Agency Revised Rule 

Sedimentation Control 

ISA NCAC 4 A .0005 - Definitions 

Agency Responded 

Agency Revised Rule 
ISA NCAC4C .0007 - Procedures: Notices 

Agency Responded 



Eff 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



01J24I92 
03/01/92 



03/19/92 
03/19/92 



03/19/92 
03/19/92 



RRC Objection 04/16/92 

Obj. Removed 04/16/92 

RRC Objection 04/16/92 

Obj. Removed 04/16/92 



RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 



12/19/91 
01/24/92 
02/20/92 
12/19/91 
01/24/92 
02/20/92 



HUMAN RESOURCES 



Facility Services 



10 NCAC 3 J .2801 - Supervision 

Agency Revised Rule 
10 NCAC 3J .2905 - Personal Hygiene Items 
10 NCAC 3J .3401 - Applicability - Construction 

Agency Revised Rule 
10 NCAC3L .0902 - License 

Agency Revised Rule 
10 NCAC 3L .0903 - Application for and Issuance of License 

Agency Revised Rule 
10 NCAC 3 L .0904 - Inspections 

Agency Revised Rule 
10 NCAC 3L .0905 - Multiple Premises 

Agency Revised Rule 
10 NCAC 3L .1202 - Case Revinx* and Plan of Care 
10 NCAC 3U .0/02 - Definitions 

Agency Revised Rule 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 



04/16/92 
04/16/92 
10/17/91 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
04/16/92 
03/19/92 
03/19/92 



Individual and Family Support 

10 NCAC42E .0905 - Personnel: Centers: Homes with Operator/ Staff 

Agency Responded 

Agency Revised Rule 
10 NCAC42E .0906 - Personnel: Day Care Homes: I Staff Person/ Op 



RRC Objection 01/24/92 

No Action 02/20/92 

Obj. Removed 03/19/92 

RRC Objection 01/24/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



459 



RRC OBJECTIONS 






Agency Responded 
Agency Revised Rule 


No Action 
Obj. Removed 


02/20/92 
03/19/92 


10 NCAC42E .1207 ■ Procedure 
Agency Responded 
Agency Revised Rule 


RRC Objection 
No Action 
Obj. Removed 


01/24/92 
02/20/92 
03/19/92 


10 NCAC42Z .0604 - Staff Requirements 
Agency Responded 
Agency Revised Rule 


RRC Objection 
No Action 
Obj. Removed 


01/24/92 
02/20/92 
03/19/92 


10 NCAC42Z .0901 - Procedure 
Agency Responded 
Agency Revised Rule 


RRC Objection 
No Action 
Obj. Removed 


01/24/92 
02/20/92 
03/19/92 


LABOR 






Elevator and Amusement Device 






13 NCAC 15 .0402 - Responsibility for Compliance 
13 NCAC 15 .0429 - Go Karts 
Agency Revised Rule 


RRC Objection 
RRC Objection 
Obj. Removed 


04/16/92 
04/16/92 
04/16/92 


LICENSING BOARDS AND COMMISSIONS 






Certified Public Accountant Examiners 






* 21 NCAC 8G .0313 - Firm Name 
Agency Responded 


RRC Objection 
No Action 


10/17/91 
12/19/91 



460 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



RULES INVALID A TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



25 NCA C IB .0414 - SITU A TIOXS IN WHICH A TTORNEYS FEES MA Y BE A WARDED 

Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings, de- 
clared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. University of 
North Carolina at Chapel Hill, Respondent (91 OSP 0905). 



7:5 NORTH CAROLINA REGISTER June 1, 1992 461 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under North 
Carolina's Administrative Procedure Act. Copies of the decisions listed in the index and not 
published are available upon request for a minimal charge bv contacting the Office of Adminis- 
trative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of Mortuary Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distribution Child Support 

DHR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EHR 

ESC 
HAF 

HRC 

IND 

INS 

LBC 

MLK 

NHA 

OAH 

OSP 

PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Human Relations Commission 
Independent Agencies 
Department of Insurance 
I icensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administra- 
tors 

Office of Administrative Hearings 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and 
I anguage Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Alyce W. Pringle 

v. 

Department of Education 


88 OSP 0592 
88 EEO 0992 


Morgan 


03, 27 92 


Susie Woodle 

v. 

Department of Commerce, State Ports Authority 


88 OSP 1411 


Mann 


03 25,92 


Fernando Demeco White 

v. 

DHR, Caswell Center 


89 OSP 0284 


West 


01 10 92 


Cathy Faye Barrow 

v. 

DHR. Craven County Health Department 


89 DHR 0715 


Morgan 


03 09 92 


Kenneth W. White 

v. 

Employment Security Commission 


90 OSP 0390 


Becton 


01 13 92 



462 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Craig S. Eury 

v. 

Employment Security Commission 


90 OSP 0391 


Becton 


01/13/92 


Jolene H. Johnson 

v. 

DHR, Division of Medical Assistance 


90 DHR 0685 


Morgan 


02/21/92 


Dover W. Walker 

v. 

Department of Environment, Health, & Natural Resources 


90 OSP 0873 

91 OSP 0180 


Chess 


05/06/92 


Joseph F. Nunes 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1036 


Morgan 


04/15/92 


Sgt. Carl Edmunds 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1135 


Nesnow 


02/04/92 


Rafael Figueroa 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1138 


Morgan 


03/30/92 


Sammie L. Frazier 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1167 


Morgan 


03/24/92 


Richard A. Boyett 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1184 


Morgan 


03/30/92 


Lance McQueen 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1204 


Morgan 


03/30/92 


Kermit Linney 

v. 

Department of Correction 


90 OSP 1380 


Morrison 


02/12/92 


Larry D. Oates 

v. 

Department of Correction 


90 OSP 1385 


Becton 


04/06/92 


Antonio S. Henderson 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1391 


Becton 


05 04/92 


Fernando Guarachi 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1393 


Morgan 


04.07/92 


Jerry Odell Johnson 

v. 

Sheriffs' Education & Training Standards Comm 


90 DOJ 1411 


Morgan 


01/09/92 


Stoney W. & Darlene L. Thompson 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0003 


West 


01/06/92 


Gloria Jones/ Medbill 

v. 

Children Special Health Services 


91 EHR 0142 


Morgan 


03 11/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



463 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Shonn S. Peek 

v. 
Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST 0147 


Gray 


04 16/92 


Willie C. Rone 

v. 
DHR, Division of Social Services, CSE 


91 CSE 0166 


Morgan 


04 13/92 


Thomas Such 

v. 

EHR and William W. Cobey Jr. 


91 OSP 0202 


Becton 


02 20/92 


N.C. Human Relations Comm. on behalf of Deborah /Mien 

v. 
Charles Watkins 


91 HRC 0204 


Morrison 


03 17/92 


Cindy Gale Hyatt 

v. 
Department of Human Resources 


91 DHR 0215 


Morgan 


02 27/92 


Gliston L. Morrisey 

v. 

Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST 0232 


West 


02 03/92 


Anthony Caldwell 

v. 

Juvenile Evaluation Center 


91 OSP 0259 


Morgan 


03 12/92 


Kenneth R. Downs, Guardian of 
Mattie M. Greene 

V. 

Teachers & St Emp Comp Major Medical Plan 


91 DST 0261 


Gray 


02 20, 92 


Deborah W. Clark 

v. 

DHR, Dorothea Dix Hospital 


91 OSP 0297 


Nesnow 


01 16/92 


Wade R. Bolton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0312 


Mann 


01 14 92 


Betty L. Rader 

v. 

Teachers' & St Emp Major Medical Plan 


91 DST 0330 


Morgan 


01 10/92 


Marcia Carpenter 

v. 
UNC - Charlotte 


91 OSP 0346 


Mann 


03 12/92 


James Arthur Lee 

v. 

NC Crime Victims Compensation Commission 


91 CPS 0355 


Chess 


03 05,92 


Fred A. Wilkie 
v. 

Wildlife Resources Commission 


91 OSP 0398 


Chess 


04 20/92 


Michael Darwin White 

v. 

Department of Environment, Health, & Natural Resources 


91 OSP 0413 


Morrison 


02 14 92 



464 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


\U 


FILED 
DATE 


Curtis Wendell Bigelow 

v. 

CCPS, Division of State Highway Patrol 


91 OSP0418 


West 


03/10/92 


Alcoholic Beverage Control Commission 

v. 

Hilsinger Enterprises, Inc., t/a The Waterin Hole 


91 ABC 0442 


Gray 


01/10/92 


Penny Whitfield 

v. 

Pitt County Mental Health Center 


91 OSP 0465 


Gray 


01/08/92 


Senior Citizens' Home Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0467 


Gray 


02/18/92 


Alcoholic Beverage Control Commission 

v. 

Everett Lee Williams Jr., t/a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01/31/92 


Jonathan Russell McCravey, t/a Encore 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0534 


Morrison 


02/04/92 


Dorothy "Cris" Crissman 

v. 

Department of Public Instruction 


91 OSP 0581 


Morrison 


04/03/92 


Horace Britton Askew Jr. 

v. 
Sheriffs' Education & Training Standards Comm 


91 DOJ 0610 


Reilly 


01/22/92 


Roy L. Keever 

v. 
Department of Correction 


91 OSP 0615 


West 


02/26/92 


Ten Broeck Hospital (Patient #110587, 

Medicaid #1 24-24-480 1-C) 
Ten Broeck Hospital (Patient #110538, 

Medicaid #240334254S) 
Ten Broeck Hospital (Patient #110788, 
Medicaid #900-12-6762-T) 
v. 
DHR, Division of Medical Assistance 


91 DHR 0618 
91 DHR 0429 
91 DHR 1265 


Morrison 


04/08/92 


Larry Madison Chatman, t/a Larry's Convenient Store 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0626 


Gray 


02/20/92 


Cecil Leon Neal 

v. 

Department of Economic & Community Development 


91 OSP 0648 


Mann 


02/07/92 


DAG, Food & Drug Protection Div, Pesticide Section 

v. 
D. Carroll Vann 


91 DAG 0654 


Morrison 


01/15/92 


Kidd's Day Care and Preschool 

v. 

Child Day Care Section 


91 DHR 0666 
91 DHR 0666 


Becton 


03/25/92 
04/10/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



465 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Mary Tisdale 

v. 

Hyde County Health Department and EHR 


91 EHR 0679 


Morgan 


03/23/92 


Alcoholic Beverage Control Commission 

v. 

Kenneth Richard Cooper, t/a Silvers 


91 ABC 0680 


Becton 


02,26,92 


Sarah Linda Hankins 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0688 


Mann 


02/27,92 


Keith Hull 

v. 

DHR - Division of Medical Assistance 


91 DHR 0707 


Chess 


02, 27/92 


Alcoholic Beverage Control Commission 

v. 

Spring Garden Bar & Grill Inc., 

T/A Spring Garden Bar & Grill 


91 ABC 0753 


Morrison 


0508/92 


Nalley Commercial Properties 

v. 

Department of Environment, Health. & Natural Resources 


91 EHR 0757 


Becton 


05,08/92 


John E. Canup 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


Reilly 


01 13/92 


Falcon Associates, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01/06/92 


Michael F. Stone 

v. 

Bd of Trustees/Local Gov't Emp Retirement Sys 


91 DST0771 


West 


02/24/92 


Ruben Gene McLean 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01 30/92 


Bobby McEachern 

v. 

Fayetteville State University 


91 OSP 0839 


Gray 


02/06/92 


Singletree, Inn 

v. 

EHR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01 16/92 


Henry B. Bamhardt 

v. 

Mt Pleasant Vol Fire Dept, St Auditor; Firemen's 

Rescue Squad Workers' Pension Fund 


91 DSA0843 


Reilly 


01 29/92 


Mackey L. Hall 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0854 


Reilly 


01/17/92 


Gloria J. Woodard 

v. 

Division of Motor Vehicles 


91 OSP 0855 
91 OSP 0855 


Mann 


04 09,92 
04 13,92 



466 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Kay Long 

v. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03/17,92 


Alcoholic Beverage Control Commission 

v. 

Mack Ray Chapman, t/a Ponderosa Lounge 


91 ABC 0887 


Morrison 


01/31/92 


Joseph W. Devlin Jr., Johnson Brothers Carolina Dist 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02/11/92 


Ossie Beard 

v. 
EHR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03/12,92 


Alcoholic Beverage Control Commission 

v. 

Trinity C. C, Inc., t/a Trinity College Cafe 


91 ABC 0915 


West 


02/11/92 


N.C. Alcoholic Beverage Control Commission 

v. 

Jessie Pendergraft Rigsbee, T/A Club 2000 


91 ABC 0919 


West 


03/12/92 


Alcoholic Beverage Control Commission 

v. 

Cedric Warren Edwards, t/a Great, American Food Store 


91 ABC 0923 


Becton 


02/26/92 


Department of Environment, Health, & Natural Resources 

v. 
Hull's Sandwich Shop, Andy Hull 


91 EHR 0936 


West 


01/09/92 


Betty Davis d/b/a ABC Academy 

v. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Morrison 


01/31/92 


Thomas J. Hailey 

v. 

EHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01/15/92 


Ronald Waverly Jackson 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


91 EHR 0963 


Gray 


02/24/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0981 


Gray 


03,24/92 


James K. Moss Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0985 


Reilly 


05/18/92 


David J. Anderson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0989 


Morgan 


04/20,92 


David Lee Watson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0992 


Reilly 


05/18/92 


Herbert R. Clayton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1000 


Mann 


04/02/92 



7:5 NORTH CAROLINA REGISTER June I. 1992 



467 



CONTEST ED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Roy Shealey 

v. 

Victims Compensation Commission 


91 CPS 1002 


Morrison 


0131 92 


Joe L. Williams Jr. 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1014 


Morrison 


04 30 92 


Willie Brad Baldwin 

v. 
DHR, Division of Social Services, CSE 


91 CSE 1020 


Reilly 


01 28,92 


Clinton Dawson 

v. 

N.C. Department of Transportation 


91 OSP 1021 


Mann 


03.05 92 


Benjamin C. Dawson 

v. 

Department of Correction 


91 OSP 1025 


West 


02/18/92 


Paulette R. Smith 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1026 


Reilly 


02/27,92 


Scot Dawson 

v. 

Department of Labor 


91 DOL 1031 


West 


02/24 92 


Luis A. Rosario 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03 03/92 


Elijah Jefferson Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1055 


Gray 


04 20 92 


Randy Quinton King 

v. 

CCPS, State Highway Patrol 


91 OSP 1064 


Gray 


03/24 92 


Ronnie C. Glenn 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1066 


Nesnow 


05 05 92 


James D. Robinson 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1068 


Gray 


04 29 92 


William H. Hogsed 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1070 


Nesnow 


03 16 92 


David L. Brown 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1074 


Morrison 


03/31 92 


Donald M. Washington 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03 04 92 


Wilham F. Driscoll 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1080 


Mann 


04 2S 92 



46S 



7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Melvin L. Miller Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1084 


Morrison 


03/16/92 


Bobby G. Evans 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1094 


ReiJJy 


01/13/92 


William Louis Timmons 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Mann 


02/18/92 


Gerald Richardson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1112 


Morgan 


05/06/92 


Edmund D. Hester 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1113 


Mann 


04/21/92 


Raymond Junior Cagle 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1123 


Mann 


03/30/92 


Richard E. Murray 

v. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01/13/92 


Pathia Miller 

v. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 1135 


Mann 


03/31/92 


Atlantic Enterprises, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1136 


Reilly 


01/23/92 


Theresa M. Sparrow 

v. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02/04/92 


Darrel D. Shields 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1141 


Morgan 


03/30/92 


John H. Price 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1142 


Morgan 


05/06/92 


James A. Hinson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1154 


Mann 


02/18/92 


George H. Parks Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1157 


Morrison 


01/27/92 


Adrian Chandler Harley 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1180 


Nesnow 


02/10/92 


Billy J. Hall 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1182 


Nesnow 


02/10/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



469 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Donaldson L. Wooten 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1189 


Reilly 


03 13 92 


William P. Reid 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1193 


Nesnow 


02 04 92 


Jeddie R. Bowman 
v. 

DHR. Division of Social Services. CSE 


91 CSE 1195 


Morrison 


04 30 92 


Ronald G. Bolden 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1208 


Gray 


02 26 92 


Wayne Phillip Irbv 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1211 


Nesnow 


02 04 92 


Tony Hollingsworth 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1212 


Nesnow 


02 10 92 


Russell G. Ginn 

v. 
Department of Correction 


91 OSP 1224 


Reilly 


02 14 92 


Angela McDonald McDougald 

v. 

DHR. Division of Social Sen ices, CSE 


91 CSE 1227 


Nesnow 


02 2S 92 


Sering 0. Mbye 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1228 


Mann 


03 11 92 


Jirnmie McNair, D.B.A. Pleasure Plus 

v. 

Alcoholic Beverage Control Commission 


91 ABC 1235 


Gray 


05 04 92 


Arthur Thomas McDonald Jr. 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1252 


Morrison 


03 31 92 


Stanford Earl Kem 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1255 


Nesnow 


02 04 92 


Gene Weaver 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1264 


Reilly 


03 25 92 


James T. White 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1271 


Gray 


02 2~ 92 


Ronald Brown and Regina Brown 

v. 
DHR. Division of Facility Services . 


91 DHR 1278 


Becton 


02 25 92 


Terrance Freeman 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1283 


Nesnow 


05 04 92 



4~0 



7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Samuel Armwood 

v. 

David Brantley, Wayne County Clerk of Superior Court 


91 CSE 1285 


Reilly 


02/11/92 


Peter Gray Coley 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1297 


Reilly 


04/21/92 


Enos M. Cook 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1303 


Morrison 


04/13/92 


Raymond Vaughan 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1304 


Reilly 


03/09/92 


Stanley Wayne Gibbs 

v. 

Elizabeth City State University 


91 OSP 1318 


Gray 


01/1492 


David Martin Strode 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1327 


Morgan 


03/19/92 


Anthony T. McNeill 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1336 


Becton 


04/20/92 


D. C. Bass 

v. 
Department of Crime Control and Public Safety 


91 OSP 1341 


Chess 


04/07/92 


Wallace Day Care Center 

v. 

DHR, Division of Facility Services 


91 DHR 1343 


Nesnow 


05/04/92 


Steveason M. Bailey 

v. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01/28/92 


Gary N. Rhoda 

v. 

Department of Correction 


91 OSP 1361 


Nesnow 


01/31/92 


William A. Sellers 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1395 


Gray 


04/01/92 


Marc D. Walker 

v. 

CCPS, Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03/16/92 


Serena Gaynor 

v. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03/02/92 


Betty Davis, D/B/A ABC Academy 

v. 
DHR, Division of Facility Services, Child Day Care Section 


91 DHR 1408 


Chess 


03/30/92 


Bill Jones Jr. and Jessie F. Jones 

v. 
Department of Human Resources 


91 DHR 1411 


Nesnow 


05/01/92 



7:5 NORTH CAROLINA REGISTER June 1, 1992 



471 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Charles R. Wellons II 

v. 

Department of Environment, Health. & Natural Resources 


91 EHR 1418 


West 


02/25/92 


Charley Joe Milligan 

v. 

Bd of Trustees Local Gov't Emp Retirement Sys 


91 DST 1424 


Gray 


02/27:92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

v. 

UNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03/13/92 


James R. Path 

v. 

Crime Victims Compensation Commission 


91 CPS 1451 


.Morrison 


04, 15/92 


OUie Robertson 

v. 

Crime Victims Compensation Commission 


92 CPS 0002 


Morrison 


04/15/92 


New Bern-Craven County Board of Education, 

a Statutory Corporation of North Carolina 

v. 

The Honorable Harlan E. Boyles, State Treasurer, 

The Honorable Ered W. Talton, State Controller, 

The Honorable William W. Cobey, Jr., Sec. of EHR, 

Dr. George T. Everett, Dir., Div. of Environmental Mgmt. 


92 EHR 0003 


Reilly 


03/13 92 


Ellen Alleood, The Red Bear Lounge, Inc., 

4022 North Main St., High Point, NC 27265 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0007 


Chess 


04/07 92 


Robert Gooden 

v. 

Department of Labor, Wage & Hour Division 


92 DOL 0009 


West 


05/14 92 


Mrs. Gillie L. Edwards, Swift Mart pi 

v. 

EHR. Division of Maternal & Child Health. WIC Section 


92 EHR 0022 


Morrison 


05/18/92 


Private Protective Services Board 

v. 

Robert R. Missildine, Jr. 


92 DOJ 0025 


Becton 


03/23/92 


Cindy G. Bartlett 

v. 

Department of Correction 


92 OSP 0029 


Reilly 


03/16/92 


Mr. Kenneth L. Smith, Pitt County Mart, Inc. 

v. 

EHR. Division of Maternal & Child Health. WIC Section 


92 EHR 0085 


Becton 


04,15 92 


Kurt Hafner 

v. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03/04 92 


Margaret Coggins 

v. 

EHR. Division of Maternal & Child Health. WIC Section 


92 EHR 0095 


Becton 


04/28 92 



472 



7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


AU 


FILED 
DATE 


Roy Blalock, Deborah Eakins, John Gordon Wright 

v. 

UNC - Chapel Hill 


92 OSP 0096 


Gray 


03/13/92 


Paula Dail 

v. 

EHR, Division of Maternal & Child Health, W1C Section 


92 EHR 0098 


Becton 


04/28/92 


Youth Focus, Inc. (MID # 239-23-0865T) 

v. 

DHR, Division of Medical Assistance 


92 DHR 0110 


Gray 


02/26/92 


Charles W. Parker 

v. 

Department of Agriculture 


92 OSP 0177 


Reilly 


04/27/92 


Brunswick County 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0195 


Morrison 


04/21/92 


John Marley Jr. 

v. 

Department of Correction 


92 OSP 0213 


Reilly 


05/18/92 


Timothy B. Milton 

v. 

Crime Victims Compensation Commission 


92 CPS 0265 


Reilly 


05/18,92 


Leon Scott Wilkinson 

v. 

Criminal Justice Education & Training Standards Comm 


92 DOJ 0280 


West 


04/24/92 


Thomas L. Rogers 

v. 

DHR, Division of Youth Services 


92 OSP 0287 


Gray 


04/30/92 


Paul M. Fratazzi, LPN 

v. 

Polk Youth Institute 


92 OSP 0325 


Nesnow 


05/01/92 


Robert S. Scheer 

v. 

Department of Crime Control & Public Safety 


92 CPS 0339 


Gray 


05/18/92 


Jeffrey Mark Drane 

v. 

Private Protective Services Board 


92 DOJ 0372 


Mann 


05/12 92 


Danny G. Hicks 

v. 

Private Protective Services Board 


92 DOJ 0373 


Mann 


05 12; 92 


Max Bolick 

v. 
Private Protective Services Board 


92 DOJ 0374 


Mann 


05/12/92 


Fred Henry Hampton 

v. 

Criminal Justice Education & Training Stds Comm 


92 DOJ 0393 


West 


04/23 92 



7:5 NORTH CAROLINA REGISTER June I, 1992 



473 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 



DOVER VV. WALKER, 

Petitioner 



NORTH CAROLINA DEPARTMENT 
OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES, 

Respondent. 



90 OSP 0873 
COUNTY OF GASTON 



DOVER W. WALKER, 

Petitioner 



NORTH CAROLINA DEPARTMENT 
OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES, 

Respondent. 



91 OSP 0180 
COLNTV OF CLEVELAND 



RECOMMENDED DECISION 



THIS MATTER came on for hearing before the undersigned Administrative Law Judge upon re- 
spondent's motions for summary disposition of the above-captioned contested cases, consolidated for 
hearing by Order dated November 12, 1991. 

APPEARANCES 

Dover W. Walker, petitioner, appeared pro se. 

Suearma P. Sumpter, Assistant Attorney General, appeared for respondent, North 
Carolina Department of Environment, Health, and Natural Resources. 

ISSUES 

Do these contested cases present any genuine issue as to any material fact and should the respondent 
be entitled to entry of judgment in its favor as a matter of law? 

FINDINGS OF FACT 

1. On September 7. 1990. petitioner filed with the Office of Administrative Hearings a petition for 
contested case hearing. Petitioner indicated that his appeal was based upon "suspension'' and "sexual 
harassment." The contested case was assigned tile number 90 OSP 0873. Respondent filed a motion for 
summary disposition of this contested case on February 26, 1991. Petitioner filed a written response to 
that motion. 

2. Petitioner tiled a second petition for contested case hearing on February 22. 1991. The contested 
case was assigned file number 91 OSP 0180. Petitioner indicated that his appeal was based upon his 
dismissal and upon alleged sexual discrimination and "retaliation." On May 30, 1991. respondent served 
the petitioner with a discovery request which included a request for admissions. Respondent filed a 
motion for summary disposition in this contested case on February 28, 1992. In its motion, respondent 
contended that, by virtue of his having failed to respond to request for admission number one (1). 
petitioner had admitted the relevant facts and that it was entitled to entry of judgment in its favor as a 



474 



7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



matter of law. On March 20, 1992, respondent served upon petitioner an Affidavit of Philip K. McKnelly 
and a Memorandum of Law offered in support of its motion. To date, petitioner has made no response, 
either written or oral, to respondent's motion for summary disposition of contested case number 91 OSP 
0180. 

3. On March 26, 1992, the undersigned Administrative Law Judge issued a "Notice of Conference 
Call on Motion for Summary Judgment," indicating that he would hear the arguments of the parties by 
means of a telephone conference at 10:00 A.M., April 3, 1992, the telephone call to be placed by the Office 
of Administrative Hearings. The Notice required the parties to inform the Administrative Law Judge in 
the event they were unable to adhere to this schedule. 

4. On April 3, 1992, at 10:00 A.M., the Office of Administrative Hearings attempted to place the 
conference call, but there was no answer at petitioner's residence. 

5. After considering the verified petitions filed by the petitioner, his response to the motion for 
summary disposition filed in contested case number 90 OSP 0873, and his admissions made in contested 
case number 91 OSP 0180; and the affidavits, papers, and memorandum of law submitted by the re- 
spondent in support of its motions for summary disposition, the Administrative Law Judge finds the 
following facts with regard to the contested cases before him. 

90 OSP 0873 

6. Petitioner was employed by the respondent, North Carolina Department of Environment, 
Health, and Natural Resources, Division of Parks and Recreation as a General Utility Worker at 
Crowders Mountain State Park between March 6, 1989 and November 14, 1990. The pay grade associ- 
ated with this position was 53. 

7. Mrs. Christina Lewandowski has been continuously employed by the respondent as a General 
Utility Worker at Crowders Mountain State Park since March 1, 1990. The pay grade associated with 
her position is 53. 

8. The duties and responsibilities assigned to Mrs. Lewandowski's position do not include, and have 
never included supervision of any other employee. Both her position and that formerly held by the 
petitioner are supervised by the Park Superintendent, Mr. Joe Sox, and, on an acting basis, by Chief 
Ranger Grant Gibson. 

9. On June 1, 1990, the petitioner was cleaning a lawnmower with a "long-reach" screwdriver in 
front of the Park Maintenance Shop. He and Mrs. Lewandowski became involved in a verbal dispute 
regarding the removal of tools from her truck. Petitioner stopped cleaning the lawnmower, stood up, 
advanced toward his co-worker, and told her that she was a "fat fucking pig." He subsequently stated 
that he "owed the swine family an apology" for comparing her to a pig, and called her "a bitch" and "a 
liar." 

10. When his acting supervisor, Mr. Gibson, attempted to investigate this incident, the petitioner 
stated that his co-worker "had gotten what was coming to her," and had "jumped him" at the Mainte- 
nance Shop regarding the removal of the tools from her truck. Petitioner further stated that he regretted 
having used the word "pig" because he had thereby insulted the "swine family," called his co-worker a 
"fat, malicious, spiteful and domineering woman," and a "fat human bitch." Petitioner then stated that 
he did not want to comment further. 

11. When asked what was bothering him, petitioner told Mr. Gibson that he was bothering him, and that 
he did not want to discuss the incident with him. When the acting supervisor asked what he had meant 
when he said his co-worker "jumped him," the petitioner responded "Grant, . . . did you have to work 
to become so stupid or were you born dumb?" Petitioner told Mr. Gibson that he did not wish to discuss 
the incident with him, and wanted him to leave so that he could finish spreading gravel. When asked if 
his co-worker had hit him, or yelled at him, the petitioner told his acting supervisor that the latter was 
"a disgrace to the Park system," "not worth a shit as a worker," and "lazy" to the point that he was 
"actually stealing from the park" by accepting a paycheck. Petitioner then expressed doubts that Mr. 



7:5 NORTH CAROLINA REGISTER June I, 1992 475 



CONTESTED CASE DECISIONS 



Gibson was actually working the hours shown on his time sheet, and implied that, when previously em- 
ployed in a seasonal position, Mr. Gibson has been derelict in his duties. 

12. By memorandum dated June 8, 1990 and received by petitioner on June 28, 1990, respondent 
documented the following disciplinary actions taken against the petitioner: issuance of a final written 
warning and a one-day suspension without pay. The one-day suspension was effective on June 5, 1990. 
The disciplinary action was taken for reasons of unacceptable personal conduct exhibited by the petitioner 
on June 1, 1990; specifically, the use of abusive language toward his co-worker, Mrs. Lewandowski, and 
toward his acting supervisor, Mr. Grant. 

13. On July 6, 1990, respondent's representatives conducted an investigation into petitioner's 
allegations, made subsequent to the events of June 1, 1990, that he had been the victim of "sexual 
harassment" on the part of his co-worker, Mrs. Lewandowski. Respondent concluded that there was not 
sufficient evidence to sustain these charges. 

91 OSP 01S0 



14. On November 14, 1990, petitioner entered the park office. lie was preparing to leave for 
Raleigh, where he was to meet with Dr. Philip McKnelly, Director, Division of Parks and Recreation. 
Mr. Joe Sox, petitioner's supervisor, told him that a state car has been filled with gas and was ready to 
go. Mr. Sox gave the petitioner gas credit cards. 

15. The supervisor then approached petitioner and told him that he had a written warning to give 
him. The supervisor told petitioner that he could sign the memorandum or not as he chose. Petitioner 
looked at the memorandum for about a minute, then said "you can have it now, you son-of-a-bitch," tore 
up the memorandum and threw it at Iris supervisor. Petitioner then left the office. 

16. Petitioner's supervisor conferred with Dr. McKnelly, who indicated that petitioner was not to 
take the state car, but should instead drive his personal vehicle. At Mr. Sox's request, Mr. Gibson spoke 
with the petitioner and told him that he was not to drive the state car, and that he would be paid mileage 
for use of his personal vehicle. Petitioner then proceeded to drive the state car to Raleigh. 

17. Petitioner was terminated from employment that same day. This decision was made by Dr. 
McKnelly and was documented in a memorandum dated November 14, 1990. The memorandum cites 
the unacceptable personal conduct set forth in findings of fact numbers fifteen (15) and sixteen (16) above 
as being the reasons for petitioner's termination. 

18. The memorandum set forth a summary of previous disciplinary actions taken against the 
petitioner, specifically: an oral warning given 11/5/90 for job performance; a written warning dated 
1 1 14/90 for job performance; and a final written warning given June 28, 1990 for unacceptable personal 
conduct. 

19. The reasons set forth in the memorandum of November 14, 1990, were the true and sole reasons 
for petitioner's termination from employment with the respondent. 

CONCLUSIONS OF I AW 

1. At the time of his suspension and subsequent termination, petitioner was a permanent state 
employee as that term is defined by G.S. §126-39. 

2. All parties are properly before the Office of Administrative Hearings and the State Personnel 
Commission. 

3. All parties have been correctly designated and there is no question of misjoinder or nonjoinder 
of the parties. 



476 7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



4. G.S. §126-35(a) provides, in relevant part: "(n)o permanent employee subject to the State Per- 
sonnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." 

5. G.S. §126-36 provides, in relevant part: "[a]ny State employee or former State employee who 
has reason to believe that . . . demotion, layoff or termination of employment was forced upon him in 
retaliation for opposition to alleged discrimination or because of his . . . sex . . . shall have the right to 
appeal directly to the State Personnel Commission." 

6. 25 N.C. Admin. Code U 0604(b) provides the following distinction between job performance 
and personal conduct issues: 

"The Job Performance category is intended to be used in addressing performance-related inade- 
quacies for which a reasonable person would expect to be notified of and allowed an opportunity 
to improve. Personal Conduct discipline is intended to be imposed for those actions for which no 
reasonable person could, or should, expect to receive prior warnings." 

The State Personnel Manual cites examples of unacceptable personal conduct actions, which category 
includes, but is not limited to, insubordination and knowing misuse of state property. 

7. 25 N.C. Admin. Code U .0610(5) provides, in relevant part: 

An employee may be suspended without pay for disciplinary purposes for causes relating to any 
form of personal conduct or in conjunction with a final written warning for performance of duties. 

8. 25 N.C. Admin. Code 1J .0608 provides, in relevant part: 

(a) Employees may be dismissed, demoted, suspended or warned on the basis of unacceptable personal 
conduct. Discipline may be imposed, as a result of unacceptable personal conduct, up to and in- 
cluding dismissal without any prior warning to the employee. 

9. In ruling upon respondent's motions for summary disposition of these contested cases, the Ad- 
ministrative Law Judge and the State Personnel Commission must consider the record in the light most 
favorable to the petitioner, and must determine whether these matters present any genuine issue as to any 
material fact and whether the respondent is entitled to entry of judgment in its favor. Snipes y^ Jackson, 
69 N.C. App. 64, 316 S.E.2d 657, appeal dismissed and cert, denied, 312 N.C. 85,321 S.E.2d 899(1984). 

90 OSP 0873 

10. In contested case number 90 OSP 0873, petitioner has appealed his suspension for one day 
without pay, alleging that such was without just cause, and has also contended that the actions of his 
co-worker, Mrs. Lewandowski, amounted to "sexual harassment." Respondent has moved for summary 
disposition of this contested case. 

1 1. Petitioner has acknowledged that he was abusive toward his co-worker, Mrs. Lewandowski, and 
his acting supervisor, Mr. Gibson, on June 1, 1990. See: petitioner's response to motion for summary 
dispostion and attachments. 

12. The behavior so admitted by the petitioner constitutes unacceptable personal conduct and just 
cause for his suspension for one day without pay. 

13. Petitioner's contentions regarding the behavior of Mrs. Lewandowski are insufficient as a matter 
of law to negate a finding of just cause for his suspension. 

14. Petitioner's allegations regarding the behavior of Mrs. Lewandowski are insufficient as a matter 
of law to state any claim against the respondent under Chapter 126. Petitioner has not alleged that the 
respondent engaged in the practice of sexual harassment. Instead, his allegations are directed against a 



co-worker who did not occupy a supervisory position. By the petitioner's own account, he did not bring 
his allegations regarding Mrs. Lewandowski's behavior to the attention of his supervisor until June 6, 1990 



7:5 NORTH CAROLINA REGISTER June 1. 1992 477 



CONTESTED CASE DECISIONS 



( See: response to motion for summary disposition and attachments) and he has made no allegations that 
the alleged behaviors of his co-worker continued after that date. Upon learning of petitioner's allegations, 
the respondent conducted an investigation into the matter, but determined that there was not sufficient 
evidence to support petitioner's contentions. That determination is not a matter which may be made the 
subject of an appeal under Chapter 126. 

15. Further, even if the petitioner had stated some claim against the respondent for sexual 
harassment or discrimination, suspension is not a disciplinary action from which an appeal might have 
been taken under §126-36. 

16. Contested case number 90 OSP 0873 does not present any genuine issue as to any material fact, 
and the respondent is entitled to entry of judgment in its favor as a matter of law. 

91 OSP 0180 

17. In contested case number 91 OSP 0180, petitioner has appealed his termination from employ- 
ment, alleging that such was done without just cause because he intended to report his supervisor's alleged 
theft of gasoline from the Park's gas storage tank, and because of his "refusal to retract the sexual 
harassment grievance, as . . . [his supervisor] requested, which . . . [he] filed against Christina Lewandowski 
on 061890." Petitioner has further expressed his belief that he was "discriminated against in retaliation 
for having opposed practices made unlawful by Title VII of the Civil Rights .Act of 1964, as amended." 

18. By virtue of his having failed to deny or otherwise respond to respondent's discovery request, 
petitioner has admitted those statements and actions attributed to him in the memorandum of disciplinary 
action dated November 14, 1990. See: respondent's first discovery request and request for admission 
number one (1) contained therein. Petitioner's behavior toward his immediate supervisor on that date 
may be described as insubordinate, violent, and abusive. Petitioner further disobeyed the orders of the 
Division Director by taking the state car to Raleigh after being told that he was not to do so. This con- 
duct represents insubordination and knowing misuse, or unauthorized use of state property. 

19. The behaviors so admitted by the petitioner represent unacceptable personal conduct and con- 
stitute just cause for his termination. 

20. Petitioner's contentions regarding his supervisor's alleged theft of gasoline do not present any 
genuine issue as to any material fact. The facts as admitted by the petitioner establish that there was just 
cause for his termination. Further, such allegations are insufficient to state a cause of action under G.S. 
§126-36, as the retaliation alleged is not "for opposition to alleged discrimination or because of his age, 
sex, race, color, national origin, religion, creed, political affiliation, or handicapped (handicapping] condi- 
tion as defined by G.S. 168A-3." 

21. Petitioner has alleged that he was discharged in retaliation for his opposition to sexual 
harassment. Were this case to proceed to hearing, petitioner would bear the initial burden of establishing 
a prima facie case of discrimination. The burden would then shift to the respondent to articulate some 
legitimate nondiscriminatory reason for the employment decision. If such a reason were articulated, the 
petitioner would have the opportunity to show that the stated reason for the employment decision was, 
in fact, a pretext for discrimination. North Carolina Dep't of Cor, \\ Gibson, 308 N.C. 131, 301 S.E.2d 
78 (1983). Area Mental Health v. Speed. 69 N.C. App. 247, 317 S.E.2d 22, cert, denied, 312 N.C. 81, 321 
S.E.2d 893 (1984). 

22. In the present case, petitioner has failed to allege even a prima facie case of retaliatory discharge. 
His petition contains no allegations of inappropriate motivation on the part of Philip K.. McKnelly, the 
Division Director and the individual who made the decision to terminate petitioner's employment. Fven 
if the petitioner were able to establish a prima facie case of retaliatory discharge, the facts which he has 
admitted would establish that the respondent has a legitimate, nondiscriminatory reason for terminating 
his employment. Further the nature of petitioner's actions and statements on November 14, 1990 were 
such that he would be unable, as a matter of law, to show that the reasons given for the employment 
decision were merely pretextual. 



478 7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



23. This matter presents no genuine issue as to any material fact and the respondent is entitled to 
judgment in its favor as a matter of law. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that the 
State Personnel Commission enter summary judgment in these contested cases in favor of the respondent; 
and thereby uphold the contested disciplinary actions, being petitioner's suspension for one day without 
pay and his subsequent termination from employment with the respondent. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with G.S. §150B-36(b). 

NOTICE 

The agency making the final decision in these contested cases is required to give each party an op- 
portunity to fde exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the final decision. G.S. §150B-36(a). 

The agency is required by G.S. §150B-36(b), to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The Agency that will make the final decision in these contested cases is the State Personnel Com- 
mission. 

This the 5th day of May, 1992. 



Sammie Chess, Jr. 
Administrative Law Judge 



7:5 NORTH CAROLINA REGISTER June I, 1992 479 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF GUILFORD 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 ABC 0753 



N. C. ALCOHOLIC BEVERAGE 
CONTROL COMMISSION, 

Petitioner 



SPRING GARDEN BAR & GRILL 
INC., T/A SPRING GARDEN BAR & 
GRILL, 

Respondent. 




The above entitled matter was heard before Fred G. Morrison, Jr., Senior Administrative Law Judge, 
Office of Administrative Hearings, on March 26, 1992, in High Point. North Carolina. 

This hearing was initiated at the request of the Petitioner to determine whether the Respondent has 
violated the Alcohol Beverage Control Laws. In addition to filing a petition pursuant to G.S. 150B-23, 
the Petitioner served upon the Respondent a Notice of Alleged Violation stating that a complaint had 
been filed with the Petitioner alleging that the Respondent or its agent had violated the Alcohol Beverage 
Control laws by an employee selling malt beverages to Jeffrey Glen I larris and Sharon Denise /Alexander, 
persons less than 21 years of age, on the licensed premises on or about December 19, 1990, at 6:10 p.m., 
in violation of G.S. 18B-302(a)(l). 

Present at the hearing for the Petitioner was Larry S. Height, Chief Agency Legal Specialist for the 
North Carolina Alcohol Beverage Control Commission. 

The Respondent was represented at the hearing by its president, William F. Sherrill. Following the 
hearing, the Respondent retained the services of Greensboro attorney, Deborah J. Bost to file a proposed 
decision and represent it in all further proceedings in this matter. 

FINDINGS OF FACT 

From official documents in this file, sworn testimony of the witnesses and other competent and ad- 
missible evidence, it is found as a fact that: 

1. Respondent. Spring Garden Bar & Grill, Inc., t a Spring Garden Bar & Grill, Greensboro, North 
Carolina, held valid ABC permits on December 19, 1990, for off-premises malt beverages, fortified 
and unfortified wine, and mixed beverages. Respondent has held its ABC permits for approxi- 
mately 10 years with no ABC warnings or violations. 

2. Both before and after December 19, 1990, Respondent has taken numerous preventative measures 
to ensure compliance with all ABC laws. These preventative measures include holding frequent 
ALE meetings at each establishment for its employees, having an ALL agent come to each estab- 
lishment once a year to speak with employees and purchasing books annually for each establish- 
ment regarding the use of fake identification. 

3. Both before and after December 19, 1990, Respondent has at all times cooperated with ALE in the 
enforcement of the ABC laws. Respondent has confiscated numerous falsified identifications and 
forward them to ALE. Respondent has informed ALE of persons making fake IDs. Respondent 
has received many letters from ALE with regard to Respondent's consistent compliance with the 
ABC laws. 



480 



7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



4. On December 19, 1990, at approximately 9:00 a.m., Respondent held an ALE meeting which 
employee, Stephanie May, attended. This meeting focused on the wide-spread use of falsified or 
altered identifications by underage persons. Samples of false IDs were passed around among the 
employees for examination. At that meeting the ALE officer mentioned how impressed he was 
with the operation's capability of collecting so many false IDs. 

5. On December 19, 1990, at approximately 6:00 p.m., Jeffrey Glen Harris and Sharon Denise 
Alexander were working for and under the direct supervision of Greensboro Police Detective, Jay 
E. Hoover. Harris and Alexander entered Spring Garden Bar & Grill located on Spring Garden 
Street, Greensboro, North Carolina. Alexander went to the restroom and Harris went to the bar 
and ordered two Michelob Lites from Respondent's employee, Stephanie May. Stephanie May 
refused to serve Harris the beers until both Harris and Alexander produced identification. When 
Alexander returned from the restroom, Harris and Alexander showed Stephanie May their driver's 
licenses showing their dates of birth as May 4, 1971, and July 23, 1972, respectively. Stephanie 
May examined the driver's licenses, verified their authenticity and then served Harris and Alexander 
two (2) Michelob Lites. 

6. On December 19, 1990, Stephanie May was charged with the criminal violation of selling malt 
beverages to persons less than 21 years old under G.S. 18B-302(a). 

7. On December 19, 1990, at approximately 6:10 p.m. Respondent's employee, Stephanie May, was 
in a rush when she checked Harris' and Alexander's identifications because employees were 
changing shifts, and the restaurant was very busy with the dinner crowd. The employees had been 
advised by an ALE officer in a meeting held in late 1990 that they should observe the actions of 
possible underage people and watch for statements like "I left my ID at home" in addition to 
checking the IDs to determine whether they were false or to determine if the picture did not look 
like the person making the purchase. 

8. Stephanie May believed both Harris and Alexander looked over the age of 21 on December 19, 
1990. She carded them because it was Spring Garden's policy to card all persons who looked 
under the age of 30. 

9. Stephanie May's employment at Spring Garden Bar & Grill was immediately terminated as a result 
of the December 19, 1990 incident. 

10. All criminal charges against Respondent's employee, Stephanie May, were dismissed on January 
10, 1991. 

11. Respondent rehired Stephanie May after receiving written and oral approval of such re-hire from 
Rick Amick at ALE. 

12. Detective Hoover stated that the reason the case was dismissed against Ms. May was because her 
attorney, Mr. Hatfield, assured the District Attorney and Detective Hoover that she would not 
work there again and because the case was weak, which Respondent disputes. 

13. G.S. 18B-302(d)(2) allows as a defense "... facts that reasonably indicated at the time of sale that 
the purchaser was at least the required age." 

14. Since December 19, 1990, Respondent has used Stephanie May and her experience of the De- 
cember 19, 1990 incident as an example for Respondent's other employees. Stephanie May travels 
to all of Respondent's establishments to lecture on the importance of complying with the ABC 
laws. She specifically warns other employees to always verify the dates on the identification shown 
and to always ask the customer's age. 

CONCLUSIONS OF LAW 



7:5 NORTH CAROLINA REGISTER June /. 1992 481 



CONTESTED CASE DECISIONS 



1 . The North Carolina Alcoholic Beverage Control Commission has the authority to revoke or sus- 
pend the permits of a permittee for violations of Chapter 18B of the General Statutes, or any rule 
of the Commission. 

2. The Respondent's employee sold malt beverages to Jeffrey Glen Harris and Sharon Denise 
Alexander, persons less than 21 vears of aee, on the licensed premises, on December 19. 1990, at 
6:10 p.m., in violation of G.S. 18B-302(a)(l). 

RECOMMENDED DECISION 

It is recommended that Respondent pay a $500 penalty. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings. P.O. Drawer 27447, Raleigh, N.C. 27611-7447. in accordance with North Carolina General 
Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an oppor- 
tunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 15UB-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic 
Beverage Control Commission. 

This the Sth dav of May, 1992. 



Fred G. Morrison, Jr. 

Senior Administrative Law Judge 



482 7:5 NORTH CAROLINA REGISTER June I, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CUMBERLAND 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 EHR 0757 



NALLEY COMMERCIAL PROPERTIES, 

Petitioner 



N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on January 29, 1992, in 
Fayetteville, North Carolina, At the conclusion of the hearing, the parties elected to exercise their right 
to file written submissions as provided for in North Carolina General Statutes section 150B-34(b). The 
record was closed on March 25, 1992. 

APPEARANCES 

For Petitioner: ROSE, RAY, WINFREY, & O'CONNOR, Attorneys at Law, Fayetteville, North 

Carolina; Steven J. O'Connor appearing. 

For Respondent: Billy R. Godwin, Associate Attorney General, Department of Justice, Raleigh, 
North Carolina. 

ISSUES 

1. Whether the Petitioner violated the provisions of the Sedimentation Pollution Control Act of 1973 
as alleged in the Director's civil penalty assessment dated June 4, 1991. 

2. Whether the Petitioner is the financially responsible party for the land disturbance. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and ad- 
missible evidence, it is found as a fact that: 

1. Nalley Commercial Properties (hereinafter "Petitioner") is the owner of a tract of land located off 
U.S. Highway 401 Business, west of Fayetteville, North Carolina. 

2. The property, approximately nine acres in size, is the site of a Food Lion and shopping center. 
The land-disturbing activity on this site was associated with the construction and development of 
the Food Lion and adjacent bays in the shopping center. 

3. Buckhead Creek, flowing generally in a north-south direction, lies adjacent to and west of the site. 

4. The Petitioner is a Partnership lawfully doing business in Cumberland County, North Carolina and 

George G. Nalley, Jr. is the Petitioner's Managing General Partner. 

5. The Respondent, an agency of the State of North Carolina, is charged with implementing and en- 
forcing the provisions of the Sedimentation Pollution Control Act of 1973 (SPCA), N.C. Gen. 
Stat. §1 13A-50 et seq. Under section 113A-64, the Respondent may assess a civil penalty of up 
to $500.00 per day to any person who violates any provision of the SPCA. 



7:5 NORTH CAROLINA REGISTER June I, 1992 



483 



CONTESTED CASE DECISIONS 



6. The SPCA requires, inter alia, that an erosion control plan be filed with and approved by the Re- 
spondent prior to the initiation of any land-disturbing activity on a site where greater than one acre 
is to be uncovered. 

7. An Frosion and Sedimentation Control Plan (hereinafter "Plan") for the construction of the Food 
Lion was filed on September 22, 1988 in the Respondent's Fayetteville Regional Office as required 
by the SPCA and was approved on October 1 1, 19SS. A revised Plan was approved by the Re- 
gional Office on February 21, 1989. 

8. Section 1 13A-61. 1 of the SPCA requires that persons engaged in land-disturbing activities comply 
with the provisions of an appro%ed Plan. 

9. Pursuant to the provisions of the SPCA at section 113A-57(3) and 15A NCAC 4B .0007, a per- 
manent ground cover, sufficient to restrain erosion from leaving the site, must be provided within 
30 working or 120 calendar days, whichever is shorter, of completion of construction and devel- 
opment. 

10. The implementing regulations promulgated by the Sedimentation Control Commission at 15A 
NCAC 4B .0013 require that the persons conducting land-disturbing activities must maintain all 
temporary and permanent erosion control measures during the development of a site and that after 
site development, the landowner or person in possession or control of the land must maintain said 
erosion control measures. 

1 1. Quality Construction Company was the agent of Nalley Commercial Property in the preparation 
of the Erosion and Sedimentation Control Plan for the subject property. The Plan was submitted 
by Quality Construction Company with the knowledge and approval of Nalley Commercial 
Properties. 

12. The Plan for the construction of the Food Lion provided seeding specifications and that all dis- 
turbed areas outside of the building paving areas were to be grassed. The Plan did not expressly 
provide that permanent ground cover was to be established as part of the Plan. 

13. The Plan approved by the Respondent for the Petitioner's site contained certain grass seeding 
specifications deemed adequate by the Respondent, if properly followed, to establish the amount 
of permanent ground cover necessary to restrain erosion upon completion of construction and 
development of the site. 

14. On September 26, 19SS, W. Frank Eskridge, Sr. signed a Financial Responsibility Ownership 
Form stating, under oath, that Quality Construction Company was financially responsible for the 
land disturbing activities on the Petitioner's property. 

15. During all inspections by the Respondent of the site, the Respondent s agents generated a 
"Sedimentation Inspection Report" which indicated findings regarding the compliance status of the 
site at the time of the inspection. 

16. On March 13. 1990. April 24, 1990, and May 21, 1990. Steve Cook, a duly authorized agent of the 
Respondent's Land Quality Section. Division of Land Resources, inspected the site to determine 
compliance with the SPCA. The Petitioner received a copy of these inspection reports. 

17. The Petitioner was cited for violation of G.S. §1 13A-61.1 (failure to follow the Plan) and G.S. 
§1 13A-57(3) (inadequate ground cover). The May inspection included a citation for violation of 
15A NCAC 4B .0013 (failure to maintain a sediment basin located in one corner of the property 
and offsite sedimentation resulting from inadequate basin maintenance). 

IS. The Respondent sent the Petitioner, by certified mail, a Notice of Violation (NOVj of the SPCA 
dated Mav 24. 1990. The Petitioner received the Notice on May 29, 1990. 



484 7:5 NORTH CAROLINA REGISTER June /, 1991 



CONTESTED CASE DECISIONS 



19. On May 29, 1990, G. Weston (Wes) Nalley of Nalley Commercial Properties telephoned the Re- 
spondent's Fayetteville Regional Office and spoke with Joe Glass, the Regional Engineer, about 
arranging an on-site meeting to discuss the Notice of Violation. Additionally, Nalley spoke with 
Steve Cook about the use of various forms of ground cover recommended by the Respondent to 
establish a ground cover on the site. 

20. Steve Cook reinspected the site on June 20, 1990. He determined that the same violations still 
existed. 

21. The Respondent sent the Petitioner, by certified mail, a Notice of Continuing Violation of the 
SPCA dated June 22, 1990. The Petitioner received the Notice on June 25, 1990. 

22. Steve Cook conducted inspections of the site on the following dates: July 2, 1990; July 6, 1990; 
July 13, 1990; July 27, 1990; August 8, 1990; September 11, 1990; September 27, 1990; October 
10, 1990; October 22, 1990; November 5, 1990; November 21, 1990; December 3, 1990; December 
26, 1990; January 7, 1991; January 22, 1991; February 5, 1991; February 19, 1991; March 5, 1991; 
March 19, 1991; and April 3, 1991. 

23. The Petitioner was provided copies of Steve Cook's inspection reports. 

24. From May 29, 1990 through April 3, 1991, violations of GS. §113A-57(3) were found by the 
Respondent's inspector, Steve Cook. The inspections during such period indicated that the 
Petitioner failed to plant or otherwise provide a permanent ground cover sufficient to restrain 
erosion on some portions of the subject property. 

25. The Respondent's inspections between May 29, 1990 and January 7, 1991 showed that the 
Petitioner violated 15A NCAC 4B .0013 by failing to clean out a sediment basin during that period 
of time. 

26. On June 4, 1991, Charles H. Gardner, Director of the Respondent's Division of Land Resources, 
assessed a $12,400.00 civil penalty against the Petitioner for alleged violations of the SPCA oc- 
curring during the 310 day period from May 29, 1990 through and including April 3, 1991. The 
penalty was assessed at $40.00 per day. 

27. In determining the amount of the penalties assessed against the Petitioner, the Respondent "con- 
sidered the criteria in 15A NCAC 4C .0006 and G.S. 113A-64(a)(3), and more particularly, the 
degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount 
of money saved by noncompliance, whether the violation was committed willfully and the prior 
record of the violator in complying or failing to comply with the Sedimentation Pollution Control 
Act and the Rules thereunder." (Respondent's exhibit 42, p. 6) 

28. The Respondent utilized a worksheet in calculating the penalty. The worksheet lists eight criteria, 
four of which were applicable to the Petitioner. The Petitioner was assessed a civil penalty in the 
amount of $10 for the types of violations, $5 for the degree and extent of harm caused by the vi- 
olation, $10 for adherence to plan/effectiveness of plan (effectiveness of steps taken to correct vi- 
olations), and $15 for prior record of violator for a total penalty of $40 per day. 

The $10 figure for item A on the worksheet represents an assessment for each of the three vio- 
lations that the Respondent alleges occurred. In calculating the amount of the penalty to be as- 
sessed, the Respondent normally assesses $5 per day for each violation. In this case, however, the 
Respondent did not assess the full $5 for either the failure to follow the approved plan violation 
(because it overlaps with the failure to provide adequate ground cover violation) or the failure to 
maintain erosion control measures (because this violation was not continuous throughout the en- 
tire period of noncompliance). 

29. The Petitioner received the civil penalty on June 17, 1991 and filed a Petition for a Contested Case 
Hearing with the Office of Administrative Hearings on August 13, 1991. 



7:5 NORTH CAROLINA REGISTER June 1, 1992 485 



CONTESTED CASE DECISIONS 



30. On several occasions the Petitioner made erosion control related expenditures on the site: $7,000 
on October 10, 1990; S530 on June 26, 1991; $1413.15 on July 10, 1991; $651.42 on July 22, 1991; 
$732 on August 8, 1991; and $4,578.36 on August 26, 1991. 

3 1 . There was no testimony offered to indicate when construction and development of the site was 
completed. The evidence indicates that the construction was either nearly completed or completed 
by August 22, 1990. 

32. The Petitioner has been the subject of a previous enforcement action on the same site on No- 
vember 28, 1989. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the fol- 
lowing: 

CONCLUSIONS OF LAW 



1 . The Petitioner, Nalley Commercial Properties, as landowner and developer of the 9 acre Food Lion 

Shopping Center which is the subject of this action, may be held responsible for any violations 
which have been committed on the subject property and civil penalties may be assessed against it 
pursuant to North Carolina General Statutes section 113A-64 and 15A NCAC 4A .0005(8). 

2. In accordance with North Carolina General Statutes section 113A-64 and 15A NCAC 4C .0007, 
the Petitioner received on May 29, 1990 a proper Notice of Violations of the Sedimentation Pol- 
lution Control Act of 1973. 

3. The Petitioner was required by North Carolina General Statutes section 113A-61.1 to implement 
their approved erosion control plan both during and upon completion of construction and devel- 
opment of the site. The Plan included seeding specifications that were adequate, if properly im- 
plemented, to establish and maintain a ground cover of grass sufficient to restrain erosion on the 
site. 

4. The Petitioner was required by North Carolina General Statutes section 113A-57(3) and 15A 
NCAC 4B .0007 to establish, within 30 working or 120 calendar days, whichever is shorter, of 
completion of construction and development, a permanent ground cover sufficient to restrain 
erosion from leaving the site. 

5. The Petitioner was required by 15A NCAC 4B .0013 to maintain all temporary and permanent 
erosion control measures during and after the development of the site. 

6. The Respondent failed to meet its burden of proving that the Petitioner violated North Carolina 
General Statutes section 113A-61.1 by failmg to conduct a land disturbing activity in accordance 
with a tiled approved erosion control plan. The evidence tended to show that beginning around 
late June, 1990 or early July, 1990, the Petitioner began seeding portions of the disturbed land on 
the site in an attempt to establish ground cover. The seeding was done in a piecemeal fashion and 
either subsequent weather and site problems caused additional work to be needed or the original 
measures were ineffective. The fact that permanent ground cover did not result from the 
Petitioner's seeding efforts does not mean that the Petitioner did not seed the site in accordance 
with the specifications contained in the Plan that was submitted to and approved by the Re- 
spondent. 

7. The Petitioner violated North Carolina General Statutes section 113A-57(3) by failing to plant or 
otherwise provide a permanent ground cover sufficient to restrain erosion after the completion of 
construction on the subject property between August 22. 1990 and April 3, 1991. 

S. The Petitioner violated 15A NCAC 4B .0013 by failing to maintain all temporary and permanent 
erosion control measures during site development on the subject property between May 29, 1990 
and April 3. 1991, including maintaining the sediment basin for the period between May 29, 1990 
and Januarv 7, 1991. 



486 7:5 NOR TH CA ROLINA R EC IS TER June I, 1992 



CONTESTED CASE DECISIONS 



9. Since the Respondent did not meet its burden of proof regarding one of the three violations for 
which the civil penalties were assessed and the evidence does not establish that construction was 
completed prior to August 22, 1990, the penalties should be recalculated. 

The Respondent utilized a Civil Penalty Assessment for SPCA Violations worksheet (Respond- 
ent's exhibit 43) which incorporates the criteria in North Carolina General Statutes section 
113A-64(a)(3) and 15A NCAC 4C .0006. The Respondent assessed the Petitioner varying dollar 
amounts for four of the eight criteria listed on the worksheet. There was no evidence presented 
to indicate that the amounts assessed for items B, C, and D should be altered as a result of the 
Respondent's failure to prove all of the violations listed in item A on the worksheet. 

It appears that the only violation in item A that was assessed at the $5 rate was the violation for 
failure to provide adequate groundcover. Dividing the remaining $5 between the two remaining 
violations makes each violation assessable at $2.50 per day each. 

In recalculating the penalty by utilizing the method used by the Respondent in its civil penalty 
assessment worksheet, the $10 figure in item A should be reduced by $2.50 because respondent 
failed to prove that the Petitioner did not follow the approved plan. This reduces the total penalty 
to $37.50 per day. 

As to the failure to provide adequate permanent groundcover, this violation was only proven to 
have lasted for 226 days, August 22, 1990 through April 3, 1991. This further reduces the $10 
figure in item A by $5 for a period of 84 days. 

Assessing the Petitioner $37.50 per day for 226 days and $32.50 per day for 84 days reduces the 
total penalty from $12,400 to $11,205. 

RECOMMENDED DECISION 

The North Carolina Department of Environment, Health, and Natural Resources will make the 
Final Decision in this contested case. It is recommended that the agency adopt the Findings of Fact and 
Conclusions of Law set forth above and assess a civil penalty against the Petitioner in the amount of 
$32.50 per day for the period beginning May 29, 1990 and ending August 21, 1990 and in the amount of 
$37.50 per day for the period beginning on August 22, 1990, the date development was proven to have 
ceased, and ending on April 3, 1991, a total penalty in the amount of $1 1,205. 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statutes 
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DE- 
CISION, and to present written arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to the Office of 
Administrative Hearings. 

This the 8th day of May, 1992. 



Brenda B. Becton 
Administrative Law Judge 



7:5 NORTH CAROLINA REGISTER June I, 1992 487 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina A dminhtr alive Code (NCA C) has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each 
major department in the North Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
two, subchapters and sections arc optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TILE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certified Public Accountant Examiners 


8 




Development 


Chiropractic Examiners 


Ki 


5 


Correction 


General Contractors 


12 


6 


Council of State 


Cosmetic Art Examiners 


14 


7 


Cultural Resources 


Dental Examiners 


16 


8 


Elections 


Dietetics/ Nutrition 


17 


9 


Governor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


19 


11 


Insurance 


Foresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


Hearing Aid Dealers and Fitters 


■>2 


14A 


Crime Control and Public Safety 


Landscape Architects 


26 


15A 


Environment, Health, and Natural 


Landscape Contractors 


28 




Resources 


Martial & Family Therapy 


31 


16 


Public Education 


Medical Examiners 


32 


17 


Revenue 


Midwifery Joint Committee 


33 


18 


Secretary of State 


Mortuary Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home Administrators 


37 


♦21 


Occupational Licensing Boards 


Occupational Therapists 


38 


22 


Administrative Procedures 


Opticians 


4u 


23 


Community Colleges 


Optometry 


42 


24 


Independent Agencies 


Osteopathic Examination and 


44 


25 


State Personnel 


Registration (Repealed) 




26 


Administrative Hearings 


Pharmacy 


46 






Physical 'Therapy Examiners 


48 






Plumbing, Heating and Fire Sprinkler 


50 






Contractors 








Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers and Land Survej 


ors 56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech and Language Pathologists and 


'.4 






Audiologists 








Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



4SS 



:5 NORTH CAROLINA REGISTER June I, 1992 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1992 - March 1993) 



1992 - 1993 

Pages Issue 

1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490: 5 - June 



AO 


Administrative Order 


AG - 


Attorney General's Opinions 


C 


Correction 


FR 


Final Rule 


GS - 


General Statute 


JO 


Judicial Orders or Decision 


M 


Miscellaneous 


NP 


Notice of Petitions 


PR 


Proposed Rule 


TR 


Temporary Rule 


ADMINISTRATION 


Auxiliary Sen' 


ices, 4 PR 



AGRICULTURE 

Gasoline and Oil Inspection Board, 336 PR 
Structural Pest Control Committee, 332 PR 
Veterinary Division, 342 PR 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 211 PR 

Environmental Health, 223 PR 

Environmental Management, 190 PR, 416 PR 

Health: Epidemiology, 140 PR 

Health Services, 52 PR 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136 PR 

Wildlife Resources Commission, 28 PR, 133 PR, 408 C, 449 PR 

Wildlife Resources Commission Proclamation, 176 

FLNAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401 

HUMAN RESOURCES 

Aging, Division of, 121 PR, 346 PR 



7:5 NORTH CAROLINA REGISTER June 1, 1992 489 



CUMULA TIVE INDEX 



Day Care Rules, 123 PR 
Economic Opportunity, 5 PR 
Facility Services, 111 PR, 177 PR 

Medical Assistance, 4 PR, 415 PR 

Mental Health, Developmental Disabilities and Substance Abuse Sen-ices, 111 PR. 297 FR, 409 PR 

Social Services Commission, 183 PR 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450 PR 

INSURANCE 

Consumer Services Division, 125 PR 

Departmental Rules. 7 PR 

Engineering and Building Codes, 19 PR 

Fire and Rescue Services Division, 17 PR 

Hearings Division, 124 PR 

Life and Health Division. 22 PR. 347 PR 

Property and Casualty Division. 20 PR 

Seniors Health Insurance Information Program, 132 PR 

JUSTICE 

Alarm Systems Licensing Board, 27 PR, 189 PR 
General Statutes Commission, 353 PR 
State Bureau of Investigation, 1S8 PR 

LICENSLNG BOARDS 

Certified Public Accountant Examiners, Board of, 355 PR 
Cosmetic .Art Examiners, 360 PR 
Electrolvsis Examiners, Board of, 69 PR 
Nursing. Board of, 232 PR 

LIST OF Rl LES CODIFIED 

List of Rules Codified, 72. 362, 452 

REVENUE 

Motor Fuels Tax Division, 361 FR 

STATE PERSONNEL 

Office of State Personnel. 237 PR 

TRANSPORTATION 

Highways, Division of. 228 PR 

Motor Vehicles, Division of, 6S PR. 142 PR 



490 7:5 NORTH CAROLINA REGISTER June 1, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 

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